Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, not to assert or take advantage of: (a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust. (b) Any defense that may arise by reason of: (i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or (ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or (iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or (iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or (v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or (vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or (vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons. (c) Demand, protest and notice of any kind, including, without limitation, the following notices: (d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or (e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or (f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust. (g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary. (h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full. (i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document. (j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby. (k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Applied Medical Corp), Credit Agreement (Applied Medical Corp)
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to a) To the fullest extent permitted by lawLaw, the obligations of each Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker of any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the Notes terms or other Loan Documents provisions of, this Agreement or any other person Loan Document, or (iii) the failure to proceed against perfect any Lien on, or exhaust the release of, any of the Collateral or other security held by Beneficiary at any time or to pursue on behalf of the Agent or any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustCredit Party.
(b) Any The obligations of each Loan Party shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or setoff, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure to proceed against any Other Obligor’s property, of the Agent or any other party against whom Beneficiary might Credit Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed Agreement, any other Loan Document or any other agreement, by any waiver or modification of Trust; or
(ii) The releaseany provision of any thereof, suspensionany default, discharge failure or impairment delay, willful or otherwise, in the performance of any of Beneficiary’s rights against any Other Obligor the Obligations, or by any other party against whom Beneficiary act or omission that may or might assert a claim, whether such release, suspension, discharge in any manner or impairment is explicit, tacit to any extent vary the risk of any Loan Party or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of Law or equity (other than the burden indefeasible payment in full in cash of all the Obligations after the termination of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsCommitments).
(c) DemandTo the fullest extent permitted by Law, protest and notice each Loan Party waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice defense of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on Party or the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Loan Party, stay other than the indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. The Agent and the other Credit Parties may, at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any bankruptcy way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Commitments have been terminated. Each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) The Obligations are the joint and several obligation of each Loan Party. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior indefeasible payment in full of the Obligations and no Loan Party will demand, xxx for or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Agent to be credited against the payment of the Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands Agreement and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents. Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code.
Appears in 2 contracts
Samples: Credit Agreement (Rh), Credit Agreement (Rh)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Loan Party hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker the failure of any of the Notes or other Loan Documents Agent or any other person Secured Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Loan Party under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Collateral Agent or any other Secured Party.
(b) Any defense that may arise by The obligations of each Loan Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the indefeasible payment in full in cash of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of any subsequent Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations).
(c) To the fullest extent permitted by applicable law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any reorganization way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to applicable law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Obligations, as more particularly set forth in the Indemnity, Subrogation and Contribution Agreement entered into amongst the Loan Parties. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Obligations. None of the Loan Parties will demand, sue for, or otherwise attempt to collect any such indebtedness. If axx amount shall erroneously be paid to any Loan Party on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Secured Parties and under shall forthwith be paid to the other Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 2 contracts
Samples: Exit Credit Agreement (Footstar Inc), Debt Agreement (Footstar Inc)
Additional Waivers. Grantor has executed (i) Each Guarantor waives any and delivered this Deed all notice of Trust with the intent of subjecting its interests in the Trust Premises to the lien acceptance of this Deed Guaranty, and any and all notice of Trust as security for the Obligations which include Obligations creation, renewal, modification, extension or accrual of parties other than Grantor (each an “Other Obligor”). Grantor hereby agreesthe Guaranteed Obligations, to or the fullest extent permitted reliance by lawthe Guaranteed Parties upon this Guaranty, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker the exercise of any right, power or privilege hereunder. The Guaranteed Obligations shall conclusively be deemed to have been created, contracted, incurred and permitted to exist in reliance upon this Guaranty. Each Guarantor waives promptness, diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all other notices to or upon the Notes or other Loan Documents Borrower, the Guarantor or any other person Guarantor or other Person with respect to the Guaranteed Obligations.
(ii) Until the Guaranteed Obligations have been paid in full in cash, each Guarantor waives (A) any defenses the Guarantor may have to the Guaranty by reason of an election of remedies by the Guaranteed Parties, (B) any rights or defenses the Guarantor may have by reason of protection afforded to the Borrower or any other Loan Party pursuant to the anti-deficiency or other laws of the State of New York limiting or discharging the Borrower’s or such other Loan Party’s indebtedness, (C) any defenses arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Guaranteed Party) of the liability of the Borrower, (D) any defenses based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Borrower, (E) any right to compel any Guaranteed Party to proceed against or exhaust any other security held by Beneficiary at any time for the Guaranteed Obligations (or to proceed against such security in a particular order) or to pursue any other remedy in Beneficiarysuch Guaranteed Party’s power before exercising whatsoever, and (F) any benefit of and any right to participate in any security now or remedy under this Deed of Trusthereafter held by the Guaranteed Parties.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary Each Guarantor warrants and agrees that would reduce the burden each of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation waivers set forth herein is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver made with full knowledge of its significance and consequences and that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosureany such waivers are determined to be contrary to any applicable law or public policy, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment waivers shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation effective only to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, maximum extent permitted by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in fullapplicable law.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 2 contracts
Samples: Term Loan Agreement (Flex Ltd.), Term Loan Agreement (Flextronics International Ltd.)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any the failure of the Notes or other Loan Documents Agent or any other person Secured Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Agent or any other Secured Party.
(b) Any defense that may arise by The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the indefeasible payment in full in cash of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any subsequent Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure 93 or delay, wilful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations).
(c) To the fullest extent permitted by applicable law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations. The Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any reorganization way the liability of any Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Obligations. None of the Borrowers will demand, sue for, or otherwise attempt to collecx xny such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Secured Parties and under shall forthwith be paid to the other Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 2 contracts
Samples: Credit Agreement (Dillards Inc), Credit Agreement (Dillards Inc)
Additional Waivers. Grantor has executed (i) The Guarantor waives any and delivered this Deed all notice of Trust with the intent of subjecting its interests in the Trust Premises to the lien acceptance of this Deed Guaranty, and any and all notice of Trust as security for the Obligations which include Obligations creation, renewal, modification, extension or accrual of parties other than Grantor (each an “Other Obligor”). Grantor hereby agreesthe Guaranteed Obligations, to or the fullest extent permitted reliance by lawthe Guaranteed Parties upon this Guaranty, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker the exercise of any right, power or privilege hereunder. The Guaranteed Obligations shall conclusively be deemed to have been created, contracted, incurred and permitted to exist in reliance upon this Guaranty. The Guarantor waives promptness, diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all other notices to or upon the Notes or other Loan Documents Borrower, the Guarantor or any other person Person with respect to the Guaranteed Obligations.
(ii) Until the Guaranteed Obligations have been paid in full in cash (other than contingent indemnification obligations, which have been provided for to the reasonable satisfaction of the Majority Lenders), the Guarantor waives (A) its rights of subrogation and reimbursement, (B) any defenses the Guarantor may have to the Guaranty by reason of an election of remedies by the Guaranteed Parties, (C) any rights or defenses the Guarantor may have by reason of protection afforded to the Borrower or any other Guaranteed Party pursuant to the anti-deficiency or other laws of the State of New York limiting or discharging the Borrower’s or such other Loan Party’s indebtedness, (D) any defenses arising by reason of any disability or other defense of the Borrower or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Guaranteed Party) of the liability of the Borrower, (E) any defenses based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Borrower, (F) any right to compel any Guaranteed Party to proceed against or exhaust any other security held by Beneficiary at any time for the Guaranteed Obligations (or to proceed against such security in a particular order) or to pursue any other remedy in Beneficiarysuch Guaranteed Party’s power before exercising whatsoever, and (G) any benefit of and any right to participate in any security now or remedy under this Deed of Trusthereafter held by the Guaranteed Parties.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary The Guarantor warrants and agrees that would reduce the burden each of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation waivers set forth herein is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver made with full knowledge of its significance and consequences and that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosureany such waivers are determined to be contrary to any applicable law or public policy, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment waivers shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation effective only to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, maximum extent permitted by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in fullapplicable law.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 2 contracts
Samples: Guaranty (Cadence Design Systems Inc), Guaranty (Cadence Design Systems Inc)
Additional Waivers. Grantor has executed (a) The Liabilities are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of any Agent or any Revolving Credit Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Loan Party under the provisions of this Deed Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of Trustthe terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Liabilities, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any Revolving Credit Lender.
(b) Any defense that may arise by The obligations of each Loan Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the indefeasible payment in full in cash of the Liabilities), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Liabilities, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise unenforceability of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary Liabilities or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of any subsequent Agent or any Revolving Credit Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the Obligations performance of the Liabilities, or by any other act or omission that may or might in any reorganization manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment in full in cash of all the Liabilities).
(c) To the fullest extent permitted by applicable law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Liabilities. Each Agent and the Revolving Credit Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Liabilities, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Liabilities have been indefeasibly paid in full in cash. Pursuant to applicable law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Loan Party of any Liabilities, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Liabilities, as more particularly set forth in an Indemnity, Subrogation and Contribution Agreement to perform its obligations hereunder be entered into amongst the Loan Parties. In addition, any indebtedness of any 133 Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior payment in full of the Liabilities. None of the Loan Parties will demand, xxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Agent and under the other Revolving Credit Lenders and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 2 contracts
Samples: Loan and Security Agreement (DSW Inc.), Loan and Security Agreement (DSW Inc.)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release of any Loan Party from, any of the Notes terms or provisions of, this Agreement, any other Loan Documents Document, or (iii) the failure to perfect any other person security interest in, or to proceed against the release of, any of the Collateral or exhaust any other security held by Beneficiary at or on behalf of the Administrative Agent, the Collateral Agent the Issuing Bank or any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustLender.
(b) Any defense that may arise by The obligations of each Loan Party to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce than the burden payment in full in cash of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension and termination of the time for the payment or performance of any Other Obligor’s obligations under any NoteCommitments), or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of including any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because release, surrender, alteration or compromise of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebyand shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors invalidity, illegality or any successor in interest unenforceability of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent, the Collateral Agent, the Issuing Bank or any subsequent Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the payment in full in cash of all the Obligations and termination of the Commitments).
(c) To the fullest extent permitted by Applicable Law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash of all the Obligations and termination of the Commitments. The Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any reorganization way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and performed in full and the Commitments terminated. Pursuant to Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case concerning may be, or any Other Obligor shall not affect security.
(d) Each Loan Party hereby agrees to keep each other Loan Party fully apprised at all times as to the obligation status of Grantor its business, affairs, finances, and financial condition, and its ability to perform its obligations hereunder Obligations under the Loan Documents and in particular as to any adverse developments with respect thereto. Each Loan Party hereby agrees to undertake to keep itself apprised at all times as to the status of the business, affairs, finances, and financial condition of each other Loan Party, and of the ability of each other Loan Party to perform its Obligations under the Loan Documents, and in particular as to any adverse developments with respect to any thereof. Each Loan Party hereby agrees, in light of the foregoing mutual covenants to inform each other, and to keep themselves and each other informed as to such matters, that the none of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender shall have any duty to inform any Loan Party of any information pertaining to the business, affairs, finances, or financial condition of any other Loan Party, or pertaining to the ability of any other Loan Party to perform its Obligations under the Loan Documents, even if such information is adverse, and even if such information might influence the decision of one or more of the Loan Parties to continue to be jointly and severally liable for, or to provide Collateral for, Obligations of one or more of the other Loan DocumentsParties. To the fullest extent permitted by Applicable Law, each Loan Party hereby expressly waives any duty of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender to inform any Loan Party of any such information.
Appears in 2 contracts
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc), Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with each Loan Party. To the intent fullest extent permitted by Applicable Law, the obligations of subjecting its interests in each Loan Party hereunder shall not be affected by (i) the Trust Premises failure of any Credit Party to assert any claim or demand or to enforce or exercise any right or remedy against any other Loan Party under the lien provisions of this Deed Agreement, any other Loan Document or under Applicable Law, (ii) any rescission, waiver, amendment or modification of, or any release of Trust as any Loan Party from, any of the terms or provisions of, this Agreement, any other Loan Document, or (iii) the failure to perfect any security for interest in, or the release of, any of the Collateral or other security held by or on behalf of the Collateral Agent or any other Credit Party.
(b) To the fullest extent permitted by Applicable Law, the obligations of each Loan Party to pay the Obligations which include Obligations of parties in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than Grantor (each an “Other Obligor”the payment in full in cash of the Obligations after the termination of all Commitments to any Loan Party under any Loan Document), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Grantor hereby agreesWithout limiting the generality of the foregoing, to the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any other Credit Party to assert any claim or take advantage of:
(a) Any right demand or to require Beneficiary to proceed against enforce any Other Obligorremedy under this Agreement, as maker any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Notes Obligations, or other Loan Documents or by any other person act or omission that may or might in any manner or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment extent vary the risk of any of Beneficiary’s rights against any Other Obligor Loan Party or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden payment in full in cash of all the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension after termination of the time for the payment or performance of all Commitments to any Other Obligor’s obligations Loan Party under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsDocument).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kinddefense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, includingor the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash of all the Obligations after the termination of all Commitments to any Loan Party under any Loan Document. To the fullest extent permitted by Applicable Law, the Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without limitationaffecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and performed in full after the termination of Commitments to any Loan Party under any Loan Document. Pursuant to, and to the following notices:fullest extent permitted by, Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or any security.
(d) Notice Except as otherwise specifically provided herein, each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior payment in full in cash of all the Obligations (other than contingent indemnity obligations for then unasserted claims) and the termination of all Commitments to any Loan Party under any Loan Document. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the evidenceCredit Parties and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Obligations, creation whether matured or incurring unmatured, in accordance with the terms of this Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Loan Party shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Revolving Credit Loans made to another Loan Party hereunder (an “Accommodation Payment”), then the Loan Party making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Loan Parties in an amount equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Loan Party’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Loan Parties. As of any new date of determination, the “Allocable Amount” of each Loan Party shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Loan Party hereunder without (a) rendering such Loan Party “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or additional Obligations Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Loan Party with unreasonably small capital or obligation assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (provided that c) leaving such Obligations Loan Party unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or obligation is not secured by this Deed Section 4 of Trust); orthe UFTA, or Section 5 of the UFCA.
(e) Notice Without limiting the generality of the foregoing, or of any action other waiver or non action on other provision set forth in this Agreement, to the part fullest extent permitted by Applicable Law, each Loan Party waives all rights and defenses arising out of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by BeneficiaryCredit Party, even though the that election of remedies, such as a nonjudicial foreclosure with respect to this Deed of Trustsecurity for a guaranteed obligation, will destroy Grantorhas destroyed such Credit Party’s rights of subrogation and reimbursement against Other Obligors such Loan Party. Each Loan Party waives all rights and defenses that such Loan Party may have because the Obligations are secured by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary Real Estate which means, among other things: (i) waives a deficiency judgment in Credit Party may collect from any Loan Party without first foreclosing on any Real Estate or personal property Collateral pledged by a judicial foreclosure, or Loan Party; (ii) exercises if any Credit Party forecloses on any Real Estate pledged by any Loan Party, the power amount of the Obligations may be reduced only by the price for which that Real Estate is sold at the foreclosure sale, even if the Real Estate is worth more than the sale under this Deed of Trustprice; and (iii) the Credit Parties may collect Obligations from a Loan Party even if a Credit Party, by foreclosing on any action by Grantor against such Real Estate, has destroyed any Other Obligor right any Loan Party may have to obtain reimbursement collect from the other Loan Parties. This is an unconditional and irrevocable waiver of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under rights and defenses any Loan Party may have because the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note Obligations are secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against BeneficiaryReal Estate.
(hf) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured Each Loan Party hereby (i) against any Other Obligor, by way of subrogation agrees to keep each other Loan Party fully apprised at all times as to the rights status of Beneficiary or otherwiseits business, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebyaffairs, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security thereforfinances, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiaryfinancial condition, and Grantor has relied solely on said independent inquiries and investigations preparatory its ability to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy perform its Obligations under the Loan Documents, and in particular as to pursue any other remedy or adverse developments with respect thereto. Each Loan Party hereby agrees to enforce any other right. Notwithstanding any modification, discharge or extension undertake to keep itself apprised at all times as to the status of the Obligations or any amendmentbusiness, modificationaffairs, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporaryfinances, and whether assented financial condition of each other Loan Party, and of the ability of each other Loan Party to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations Obligations under the Loan Documents, and in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed particular as to any and all risks of a bankruptcy or reorganization case or proceeding adverse developments with respect to Other Obligorsany thereof. Without Each Loan Party hereby agrees, in any way limiting the generality light of the foregoingforegoing mutual covenants to inform each other, and to keep themselves and each other informed as to such matters, that the Credit Parties shall have no duty to inform any subsequent modification Loan Party of any information pertaining to the Obligations in business, affairs, finances, or financial condition of any reorganization case concerning other Loan Party, or pertaining to the ability of any Other Obligor shall not affect the obligation of Grantor other Loan Party to perform its obligations hereunder Obligations under the Loan Documents, even if such information is adverse, and under even if such information might influence the decision of one or more of the Loan Parties to continue to be jointly and severally liable for, or to provide Collateral for, the Obligations of one or more of the other Loan DocumentsParties. To the fullest extent permitted by applicable law, each Loan Party hereby expressly waives any duty of the Credit Parties to inform any Loan Party of any such information.
Appears in 2 contracts
Samples: Credit Agreement (Michaels Stores Inc), Credit Agreement (Michaels Stores Inc)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises each Account Party. Each Account Party hereby assumes, guarantees, and agrees to the lien of this Deed of Trust as security for the Obligations which include discharge all Obligations of parties all other than Grantor obligors.
(each an “Other Obligor”). Grantor hereby agrees, to b) To the fullest extent permitted by lawApplicable Law, the obligations of each Account Party hereunder shall not be affected by (i) the failure of Issuing Bank to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s propertyother obligor under the provisions of this Agreement, any other Credit Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Credit Document, or any other party against whom Beneficiary might assert a claimagreement, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or including with respect to any other party against whom Beneficiary might assert a claimobligor, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s the failure to pursue perfect any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Notesecurity interest in, or the release of, any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note security held by or any on behalf of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsIssuing Bank.
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice the obligations of each Account Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any kind, including, without limitation, the following notices:
(d) Notice of the evidenceObligations, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is and shall not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right be subject to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of the Account Parties hereunder shall not be discharged or impaired or otherwise affected by any subsequent modification default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any obligor or that would otherwise operate as a discharge of any obligor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations).
(d) To the fullest extent permitted by Applicable Law, each Account Party waives any defense based on or arising out of any defense of any other obligor or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other obligor, other than the indefeasible payment in full in cash of all the Obligations. The Issuing Bank may, at its election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other obligor, or exercise any other right or remedy available to them against any other obligor, without affecting or impairing in any reorganization way the liability of any obligor hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each obligor waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such obligor against any other obligor, as the case concerning may be, or any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentssecurity.
Appears in 2 contracts
Samples: Uncommitted Letter of Credit Agreement, Uncommitted Letter of Credit Agreement (Sears Holdings Corp)
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to a) To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release of any Loan Party from, any of the Notes terms or provisions of, this Agreement, any other Loan Documents Document, or (iii) the failure to perfect any other person security interest in, or to proceed against the release of, any of the Collateral or exhaust any other security held by Beneficiary at any time or to pursue on behalf of the Administrative Agent, the Collateral Agent or any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustCredit Party.
(b) Any defense that may arise by The obligations of each Loan Party, whether set forth hereunder or pursuant to any Guaranty, to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure other than the indefeasible payment in full in cash of the Obligations after the termination of all Commitments to proceed against any Other Obligor’s propertyLoan Party under any Loan Document), or including any other party against whom Beneficiary might assert a claimclaim of waiver, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against the Obligations, and shall not be subject to any Other Obligor defense or any other party against whom Beneficiary might assert a claimsetoff, whether such releasecounterclaim, suspension, discharge recoupment or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden termination whatsoever by reason of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension invalidity, illegality or unenforceability of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursementObligations, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the obligations of each Loan Party shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any subsequent other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after termination of all Commitments to any Loan Party under any Loan Document).
(c) To the fullest extent permitted by Applicable Law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations after the termination of all Commitments to any Loan Party under any Loan Document. The Administrative Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any reorganization case concerning way the liability of any Other Obligor shall not affect Loan Party hereunder except to the obligation extent that all the Obligations have been indefeasibly paid in full in cash and performed in full after the termination of Grantor Commitments to perform its obligations hereunder and any Loan Party under the any Loan Document. Pursuant to Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan DocumentsParty, as the case may be, or any security.
Appears in 2 contracts
Samples: Credit Agreement (American Apparel, Inc), Credit Agreement (American Apparel, Inc)
Additional Waivers. Grantor has executed (a) The Liabilities are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of any Agent or any Revolving Credit Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Deed Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, or any release of Trustthe obligations of any other Borrower from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any Revolving Credit Lender.
(b) Any defense that may arise The obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by reason of:
(i) Beneficiary’s the failure of any Agent or any Revolving Credit Lender to proceed against assert any Other Obligor’s propertyclaim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other party against whom Beneficiary agreement, by any default, failure or delay, willful or otherwise, in the performance of the Liabilities, or by any other act or omission that may or might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge in any manner or impairment to any extent vary the risk of any of Beneficiary’s rights against any Other Obligor Borrower or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance otherwise operate as a discharge of any Other Obligor’s obligations under any Note, Borrower as a matter of law or any equity (other than the indefeasible payment in full in cash of all the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsLiabilities).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Borrower waives any defense based on or arising out of any kinddefense of any other Borrower or the unenforceability of the Liabilities or any part thereof from any cause, includingor the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Liabilities. The Collateral Agent and the Revolving Credit Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Liabilities, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without limitationaffecting or impairing in any way the liability of any Borrower hereunder except to the extent that all the Liabilities have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the following notices:case may be, or any security.
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non Upon payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason Borrower of any claim or defense based upon an election of remedies by Beneficiary to forecloseLiabilities, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other all rights of Grantor to proceed such Borrower against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such Borrower arising as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, result thereof by way of subrogation right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the rights prior indefeasible payment in full in cash of Beneficiary or otherwiseall the Liabilities. In addition, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest indebtedness of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party Borrower now or hereafter liable held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Liabilities. None of the Borrowers will demand, xxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the performance benefit of any such obligation, (ii) extend the time for Agent and the performance of any such obligation, (iii) accept additional security therefor, Revolving Credit Lenders and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect shall forthwith be paid to the ability of Other Obligors Administrative Agent to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without be credited against the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension payment of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other ObligorLiabilities, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 2 contracts
Samples: Loan and Security Agreement (Casual Male Retail Group Inc), Loan and Security Agreement (Casual Male Retail Group Inc)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of the Administrative Agent or any Lender to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release of any Loan Party from, any of the Notes terms or other Loan Documents provisions of, this Agreement or any other person Loan Document, (other than as expressly contemplated by such waiver, amendment or modification), (iii) the failure to proceed against perfect any security interest in, or exhaust the release of, any of the Collateral or other security held by Beneficiary at or on behalf of the Administrative Agent or any time Lender or to pursue (iv) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any other remedy in Beneficiary’s power before exercising Loan Party or its assets or any right resulting release or remedy discharge of any obligation of any other Loan Party under this Deed of Trustany Loan Documents.
(b) Any defense that may arise by The obligations of each Loan Party to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the payment in full in cash of all Obligations and termination of the Commitments), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebyand shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors invalidity, illegality or any successor in interest unenforceability of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of Administrative Agent or any subsequent Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof (other than to the extent such waiver or modification so expressly waives or modifies such obligations or remedies), any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the payment in full in cash of all Obligations (other than contingent indemnification obligations not then due and payable) and termination of the Commitments).
(c) To the fullest extent permitted by Applicable Law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash of all the Obligations (other than contingent indemnification obligations not then due and payable) and termination of the Commitments. The Administrative Agent and the Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any reorganization way the liability of any Loan Party hereunder except to the extent that all the Obligations have been paid in full in cash (other than contingent indemnification obligations not then due and payable) and the Commitments terminated. Pursuant to Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case concerning may be, or any Other Obligor shall not affect security.
(d) Each Loan Party (except for the obligation Borrower) is a direct or indirect subsidiary of Grantor the Borrower, and each Loan Party acknowledges that (x) together with the other Loan Parties, it makes up a related organization of various entities constituting a single economic and business enterprise such that the Loan Parties share a common identity of interests and any benefit received by any one Loan Party benefits the other Loan Parties, and
(e) it will derive substantial benefit from the making of the Loans by the Lenders. Each Loan Party hereby agrees to keep each other Loan Party fully apprised at all times as to the status of its business, affairs, finances, and financial condition, and its ability to perform its obligations hereunder Obligations under the Loan Documents and in particular as to any adverse developments with respect thereto. Each Loan Party hereby agrees to undertake to keep itself apprised at all times as to the status of the business, affairs, finances, and financial condition of each other Loan Party, and of the ability of each other Loan Party to perform its Obligations under the Loan Documents, and in particular as to any adverse developments with respect to any thereof. Each Loan Party hereby agrees, in light of the foregoing mutual covenants to inform each other, and to keep themselves and each other informed as to such matters, that the none of the Administrative Agent or any Lender shall have any duty to inform any Loan Party of any information pertaining to the business, affairs, finances, or financial condition of any other Loan Party, or pertaining to the ability of any other Loan Party to perform its Obligations under the Loan Documents, even if such information is adverse, and even if such information might influence the decision of one or more of the Loan Parties to continue to be jointly and severally liable for, or to provide Collateral for, Obligations of one or more of the other Loan DocumentsParties. To the fullest extent permitted by Applicable Law, each Loan Party hereby expressly waives any duty of the Administrative Agent or any Lender to inform any Loan Party of any such information.
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to a) To the fullest extent permitted by applicable law, the obligations of Borrower shall not be affected by (i) the failure of Lender to assert any claim or take advantage demand or to enforce or exercise any right or remedy against Borrower under the provisions of this Agreement, any other Transaction Document or otherwise, (ii) any rescission, waiver, amendment or modification of:
(a) Any right to require Beneficiary to proceed against , or any Other Obligor, as maker of release from any of the Notes terms or other Loan Documents provisions of, this Agreement or any other person Transaction Document, or (iii) the failure to proceed against perfect any security interest in, or exhaust the release of, any of the Collateral or other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed on behalf of Trustthe Lender.
(b) Any defense that may arise by The obligations of Borrower shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the payment in full in cash of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or setoff, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election unenforceability of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the obligations of Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of the Lender to assert any subsequent claim or demand or to enforce any remedy under this Agreement, any other Transaction Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the payment in full in cash of all the Obligations). The Lender may, at its election, foreclose on any security held by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with Borrower, or exercise any other right or remedy available to it against Borrower, without affecting or impairing in any way the liability of Borrower hereunder except to the extent that all the Obligations have been paid in full in cash. Borrower waives any reorganization case concerning defense arising out of any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentssuch election.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker of any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the Notes terms or other Loan Documents provisions of, this Agreement or any other person Loan Document, or (iii) the failure to proceed against perfect any security interest in, or exhaust the release of, any of the Collateral or other security held by Beneficiary at any time or to pursue on behalf of the Collateral Agent or any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustCredit Party.
(b) Any The obligations of each Loan Party shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the Payment in Full of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or setoff, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure to proceed against of any Other Obligor’s property, Agent or any other party against whom Beneficiary might Credit Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed Agreement, any other Loan Document or any other agreement, by any waiver or modification of Trust; or
(ii) The releaseany provision of any thereof, suspensionany default, discharge failure or impairment delay, willful or otherwise, in the performance of any of Beneficiary’s rights against any Other Obligor the Obligations, or by any other party against whom Beneficiary act or omission that may or might assert a claim, whether such release, suspension, discharge in any manner or impairment is explicit, tacit to any extent vary the risk of any Loan Party or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden Payment in Full of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsObligations).
(c) DemandTo the fullest extent permitted by applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice defense of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on Party or the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Loan Party, stay other than the Payment in Full of all the Obligations. The Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or non‑judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any bankruptcy way the liability of any Loan Party hereunder except to the extent that all the Obligations have been Paid in Full. Each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable Law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) Each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior Payment in Full of all the Obligations. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior Payment in Full of the Obligations and no Loan Party will demand, sue for or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Agent to be credited against the payment of the Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Loan Party shall, under this Agreement as a joint and several obligor, repay any of Trustthe Obligations constituting Revolving Loans made to another Loan Party hereunder or other Obligations incurred directly and primarily by any other Loan Party (an “Accommodation Payment”), then the Loan Party making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Loan Parties in an amount, for each of such other Loan Parties, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Loan Party’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Loan Parties. Grantor understands and acknowledges that by virtue As of this Deed any date of Trustdetermination, it has specifically assumed any and all risks the “Allocable Amount” of a bankruptcy each Loan Party shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Loan Party hereunder without (a) rendering such Loan Party “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or reorganization case Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Loan Party with unreasonably small capital or proceeding with respect assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Loan Party unable to Other Obligors. pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(e) Without in any way limiting the generality of the foregoing, or of any subsequent modification other waiver or other provision set forth in this Agreement, each Loan Party hereby absolutely, knowingly, unconditionally, and expressly waives any and all claim, defense or benefit arising directly or indirectly under any one or more of Sections 2787 to 2855 inclusive of the Obligations in California Civil Code or any reorganization case concerning any Other Obligor shall not affect the obligation similar law of Grantor to perform its obligations hereunder and under the other Loan DocumentsCalifornia.
Appears in 1 contract
Samples: Abl Term Loan Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Additional Waivers. Grantor has executed (a) The Liabilities are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of any Agent or any Term Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Deed Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, or any release of Trustthe obligations of any other Borrower from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any Term Lender.
(b) Any defense that may arise The obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by reason of:
(i) Beneficiary’s the failure of any Agent or any Term Lender to proceed against assert any Other Obligor’s propertyclaim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other party against whom Beneficiary agreement, by any default, failure or delay, willful or otherwise, in the performance of the Liabilities, or by any other act or omission that may or might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge in any manner or impairment to any extent vary the risk of any of Beneficiary’s rights against any Other Obligor Borrower or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance otherwise operate as a discharge of any Other Obligor’s obligations under any Note, Borrower as a matter of law or any equity (other than the indefeasible payment in full in cash of all the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsLiabilities).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Borrower waives any defense based on or arising out of any kinddefense of any other Borrower or the unenforceability of the Liabilities or any part thereof from any cause, includingor the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Liabilities. The Collateral Agent and the Term Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Liabilities, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without limitationaffecting or impairing in any way the liability of any Borrower hereunder except to the extent that all the Liabilities have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the following notices:case may be, or any security.
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non Upon payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason Borrower of any claim or defense based upon an election of remedies by Beneficiary to forecloseLiabilities, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other all rights of Grantor to proceed such Borrower against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such Borrower arising as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, result thereof by way of subrogation right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the rights prior indefeasible payment in full in cash of Beneficiary or otherwiseall the Liabilities. In addition, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest indebtedness of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party Borrower now or hereafter liable held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Liabilities. None of the Borrowers will demand, sxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the performance benefit of any such obligation, (ii) extend the time for Agent and the performance of any such obligation, (iii) accept additional security therefor, Term Lenders and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect shall forthwith be paid to the ability of Other Obligors Administrative Agent to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without be credited against the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension payment of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other ObligorLiabilities, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Destination Xl Group, Inc.)
Additional Waivers. Grantor has executed In addition, and delivered without limitation on any waivers contained in this Deed of Trust with Agreement or the intent of subjecting its interests in the Trust Premises other Loan Documents:
a. Pledgor hereby unconditionally waives any defense to the lien enforcement of this Deed Agreement based on the characterization of Trust Pledgor as security a guarantor and without limitation.
b. The Obligations of Pledgor hereunder shall remain in full force and effect without regard to, and shall not be affected or impaired by the following, any of which may be taken without the consent of, or notice to Pledgor, nor shall any of the following give Pledgor any recourse or right of action against Lender:
(1) Any express or implied amendment, modification, renewal, addition, supplement, extension (including extensions beyond the original term) or acceleration of or to any of the Loan Documents;
(2) Any exercise or non‑exercise by Lender of any right or privilege under the Loan Documents;
(3) Any bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to Pledgor, or any guarantor (which term shall include any other party at any time directly or contingently liable for any Credit Party’s Obligations under the Loan Documents) or any affiliate of Pledgor or any guarantor, or any action taken with respect to the Loan Documents by any trustee or receiver, or by any court, in any such proceeding, whether or not Pledgor shall have had notice or knowledge of any of the foregoing;
(4) Any release or discharge of any Credit Party or any guarantor from its liability under any of the Loan Documents or any release or discharge of any endorser or guarantor or of any other party at any time directly or contingently liable for the Obligations which include Obligations evidenced by the Loan Documents;
(5) Any subordination, compromise, release (by operation of parties law or otherwise), discharge, compound, collection, or liquidation of any or all of the Pledged Collateral or any other than Grantor collateral described in any of the Loan Documents or otherwise in any manner, or any substitution with respect thereto;
(each an “Other Obligor”). Grantor hereby agrees, 6) Any assignment or other transfer of any of the Loan Documents;
(7) Any acceptance of partial performance of the Obligations;
(8) Any transfer or consent to the fullest extent permitted transfer of any Healthcare Facility or any portion thereof or any collateral described in the Loan Documents or otherwise; and
(9) Any bid or purchase at any sale of any collateral described in the Loan Documents or otherwise, or the release of the same by lawLender.
c. Pledgor unconditionally waives any defense to the enforcement of this Agreement, not to assert or take advantage ofincluding:
(a1) All presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this Agreement or any Loan Document;
(2) Any right to require Beneficiary Lender to proceed against any Other Obligorother Person (including without limitation, as maker of any of the Notes or other Loan Documents Credit Party or any other person guarantor) at any time or to proceed against or exhaust any other security held by Beneficiary Lender at any time or to pursue any other remedy in Beneficiary’s power before exercising whatsoever at any right or remedy under this Deed of Trust.time;
(b3) Any The defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against of any Other Obligor’s propertystatute of limitations affecting the liability of Pledgor hereunder, the liability of any Credit Party or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor guarantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed enforcement hereof, to the extent permitted by executing this Deed of Trust; orlaw;
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g4) Any right to assert against Beneficiary any defense arising by reason of any claim invalidity or unenforceability of (or any limitation of liability in) any of the Loan Documents or any disability of any Credit Party, Pledgor or any guarantor or of any manner in which Lender has exercised its rights and remedies under the Loan Documents, or by any cessation from any cause whatsoever of the liability of any Credit Party, Pledgor or any guarantor;
(5) Without limitation on clause (4) above, any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of any Credit Party or any principal of any Credit Party or any defect in the formation thereof;
(6) Any defense based upon the application by any Credit Party of the proceeds of the Loans or other Obligations for purposes other than the purposes represented by such Credit Party to Lender or intended or understood by Lender or Pledgor;
(7) Any defense based upon an election of remedies by Beneficiary Lender, including any election to foreclose, either proceed by judicial or nonjudicial foreclosure of any security, whether real property or personal property security, or by exercise deed in lieu thereof, and whether or not every aspect of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursementforeclosure sale is commercially reasonable, or any other election of remedies, including remedies relating to real property or personal property security, which destroys or otherwise impairs the subrogation rights of Grantor Pledgor or the rights of Pledgor to proceed against any other person Credit Party for reimbursement, or security. Grantor waives all rights and defenses to enforcement both;
(8) Any defense based upon any statute or rule of all or law which provides that the obligation of a surety must be neither larger in amount nor in any part other aspects more burdensome than that of a principal;
(9) Any defense based upon Lender’s election, in any proceeding instituted under the Federal Bankruptcy Code, of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation application of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d1111(b)(2) of the California Federal Bankruptcy Code of Civil Procedure which provides that no judgment shall be rendered for or any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.successor statute;
(h10) Any rights arising because defense based upon any borrowing or any grant of Grantor’s payment or satisfaction a security interest under Section 364 of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.Federal Bankruptcy Code;
(i11) Any duty on of Lender to advise Pledgor of any information known to Lender regarding the part financial condition of Beneficiary to disclose to Grantor any default under any Note Credit Party, or any guarantor all other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor circumstances affecting any facts Beneficiary may now know or may hereafter know about any Other Obligor Credit Party or any successors in interest (if any) regardless of whether Beneficiary (i) has reason guarantor’s ability to believe that any such facts materially increase the risk beyond the risk which Grantor intends perform its Obligations to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to GrantorLender, it being understood and agreed that Grantor is fully responsible Pledgor assumes the responsibility for being and keeping informed of the financial regarding such condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.such circumstances; and
(k12) Any right of subrogation, reimbursement, exoneration, contribution or indemnity, or any right to object enforce any remedy which Lender now has or may hereafter have against any other Person or any benefit of, or any right to the release of participate in, any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party security now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to held by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan DocumentsLender.
Appears in 1 contract
Additional Waivers. Grantor has executed The Guarantors waive any and delivered this Deed of Trust with all rights to ------------------ require the intent of subjecting its interests in the Trust Premises Banks to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, not to assert or take advantage of:
(ai) Any right to require Beneficiary to proceed against any Other Obligorthe Borrower or the other Guarantors, as maker of any of the Notes or other Loan Documents or any other person or to (ii) proceed against or exhaust any rights against the Borrower or any other Person or exhaust security held by Beneficiary at any time from the Borrower or to the other Guarantors, or (iii) pursue any other remedy in Beneficiary’s the Banks' power before exercising whatsoever. The Banks may, at their election, exercise any right or remedy they may have against the Borrower or any security now or hereafter held by the Banks, including the right to foreclose upon any such security by judicial or nonjudicial sale and regardless of whether such sale is deemed to be commercially reasonable, without affecting or impairing in any way the liability of the Guarantors hereunder except to the extent the Obligations may thereby be paid. Only the net proceeds from any such foreclosure, after deduction of all costs and expenses authorized to be deducted pursuant to the documents under this Deed which such security is held or by law, shall be applied against the Obligations. The Banks may at their discretion purchase all or any part of Trust.
(b) Any such security so sold or offered for sale for their own account and may apply against the amount bid therefor all or any part of the Obligations for which such security is held. The Guarantors waive any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed arising out of the absence, impairment or loss of any right of reimbursement or subrogation or other right or remedy of the Guarantors against any Other Obligor’s property, the Borrower or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimsuch security, whether resulting from such releaseelection by the Banks, suspensionany defect in, discharge failure of or impairment is explicit, tacit loss or inadvertent; or
(iii) Beneficiary’s failure absence of priority with respect to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests Banks' interest in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Notesuch security, or otherwise. The Banks shall not be required to institute or prosecute proceedings to recover any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce deficiency as a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice condition of payment hereunder or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary enforcement hereof. The Guarantors waive any defense arising by reason of any claim disability or other defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure the Borrower or by exercise reason of the power cessation from any cause whatsoever of salethe liability of the Borrower. The Guarantors shall have no right of subrogation, this Deed and waive any right to enforce any remedy which the Banks now have or may hereafter have against the Borrower, and waive any and all benefit of Trust, which or right to participate in any manner impairssecurity now or hereafter held by the Banks. Furthermore, reducesthe liability of each Guarantor under its guarantee shall be absolute, releasesunconditional and irrevocable irrespective of:
(i) any lack of validity, destroys legality or extinguishes Grantor’s subrogation rightsenforceability of this Agreement or any other Instrument;
(ii) any reduction, rights limitation, impairment or termination of any Obligations for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to proceed against (and each Guarantor hereby waives any Other Obligor for reimbursementright to or claim of) any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any other rights of Grantor to proceed against any other person event or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trustoccurrence affecting, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.; and
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy circumstance which might otherwise constitute a defense available to, or to enforce any other right. Notwithstanding any modification, discharge a legal or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s equitable by such Bank in enforcing its rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of under this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentsguarantee.
Appears in 1 contract
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises Each Pledgor waives any right to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, require Administrative Agent to the fullest extent permitted by law, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligorperson, as maker of any of the Notes or other Loan Documents or any other person or to (b) proceed against or exhaust any other security held by Beneficiary at any time collateral, or to (c) pursue any other remedy in BeneficiaryAdministrative Agent’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trustpower; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary waives any defense arising by reason of any disability or other defense of any Borrower or any other person, or by reason of the cessation from any cause whatsoever of the liability of any Borrower or any other person. Until the Indebtedness (other than contingent indemnity obligations as to which no claim is then pending) is paid in full, each Pledgor waives any right of subrogation, reimbursement, indemnification, and contribution (contractual, statutory or otherwise), including without limitation any claim or defense based upon an election right of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise subrogation under the Bankruptcy Code (Title 11 of the power U.S. Code) or any successor statute, arising from the existence or performance of salethis Agreement, this Deed and each Pledgor waives any right to enforce any remedy which Administrative Agent now has or may hereafter have against Borrowers or against any other person and waives any benefit of Trust, which and any right to participate in any manner impairsCollateral or security whatsoever now or hereafter held by Administrative Agent. Pledgor authorizes Administrative Agent without notice or demand and without affecting Pledgor’s liability hereunder, reducesfrom time to time to: (a) renew, releasesextend, destroys accelerate or extinguishes Grantor’s subrogation rightsotherwise change the time for payment of or otherwise change the terms of the Indebtedness or any part thereof, rights to proceed against including increase or decrease of the rate of interest thereon; (b) take and hold security, other than the Collateral, for the payment of the Indebtedness or any Other Obligor for reimbursementpart thereof, and exchange, enforce, waive and release the Collateral or any part thereof or any such other security; and (c) release or substitute any Borrower or any one or more of them, or any of the endorsers or guarantors of the Indebtedness or any part thereof, or any other rights of Grantor to proceed against any other person or securityparties thereto. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge Each Pledgor agrees that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor it is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully solely responsible for being and keeping itself informed of as to the financial condition of Other Obligors or any successor in interest of any Other Obligor the Borrowers and of all circumstances bearing on which bear upon the risk of non payment nonpayment or the risk of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions liquidation of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan DocumentsCollateral.
Appears in 1 contract
Samples: Senior Secured Credit Agreement (Aimco Properties Lp)
Additional Waivers. Grantor has executed (a) The Obligations hereunder are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawapplicable Law, the obligations of each Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker of any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the Notes terms or other Loan Documents provisions of, this Agreement or any other person Loan Document (except as expressly set forth in such recission, waiver, amendment or modification), (iii) the failure to proceed against perfect any security interest in, or exhaust the release of, any of the Collateral or other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed on behalf of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, the Collateral Agent or any other party against whom Beneficiary might assert a claimCredit Party, before proceeding against Grantor under this Deed or (iv) the lack of Trust; or
(ii) The release, suspension, discharge or impairment legal existence of any of Beneficiary’s rights against Loan Party or legal obligation to discharge any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time by any Loan Party for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kindreason whatsoever, including, without limitation, in any insolvency, bankruptcy or reorganization of any Loan Party.
(b) The obligations of each Loan Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the following notices:indefeasible payment in full in cash of the Obligations after the termination of the Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of any Agent or any other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Commitments).
(c) To the fullest extent permitted by applicable Law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. The Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Commitments have been terminated. Pursuant to, and to the extent permitted by, applicable Law, each Loan Party waives any defense arising out of any such election and waives any benefit of, and right to participate in, any such foreclosure action, even though such election operates, pursuant to applicable Law, to impair or to extinguish any right of reimbursement, indemnity, contribution or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or any security. Each Loan Party agrees that it shall not assert any claim in competition with any Agent or any other Credit Party in respect of any payment made hereunder in connection with any proceedings under any Debtor Relief Laws.
(d) Notice of Each Borrower is obligated to repay the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by hereunder as joint and several obligors under this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non Agreement. Upon payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason Loan Party of any claim or defense based upon an election of remedies by Beneficiary to forecloseObligations, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other all rights of Grantor to proceed such Loan Party against any other person Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or security. Grantor waives otherwise shall in all rights respects be subordinate and defenses junior in right of payment to enforcement the prior indefeasible payment in full in cash of all or any part the Obligations and the termination of the Obligations secured Commitments. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby which defenses are based on an election subordinated in right of remedies by Beneficiary, even though payment to the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d prior indefeasible payment in full of the California Code Obligations. Notwithstanding the foregoing, prior to the occurrence of Civil Procedurean Event of Default, any Loan Party may make payments to any other Loan Party on account of any such indebtedness. Grantor makes this waiver with full knowledge that if Beneficiary After the occurrence and during the continuance of an Event of Default, no Loan Party will demand, xxx for, or otherwise attempt to collect any such indebtedness until (i) waives a deficiency judgment in a judicial foreclosure, the Aggregate Commitments have expired or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trustterminated, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed all of the financial condition of Other Obligors Obligations have been paid in full in cash or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligationotherwise satisfied, (iii) accept additional security thereforall L/C Obligations have been reduced to zero (or fully Cash Collateralized or supported by another letter of credit in a manner reasonably satisfactory to the L/C Issuer and the Administrative Agent), and (iv) alterthe L/C Issuer has no further obligation to issue Letters of Credit under the Credit Agreement. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, substitute contribution, reimbursement, indemnity or release similar right or (ii) any property securing such performance. Before executing this Deed indebtedness of Trustany Loan Party, Grantor has made such independent legal amount shall be held in trust for the benefit of the Credit Parties and factual inquiries and investigations as Grantor deemed necessary or desirable with respect shall forthwith be paid to the ability Administrative Agent to be credited against the payment of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantorwhether matured or unmatured, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of TrustAgreement. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect Subject to Other Obligors. Without in any way limiting the generality of the foregoing, to the extent that any subsequent modification Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations in constituting Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any reorganization case concerning any Other Obligor other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall not affect the obligation be entitled to contribution and indemnification from, and be reimbursed by, each of Grantor to perform its obligations hereunder and under the other Loan DocumentsBorrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Secured Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to To the fullest extent permitted by applicable law, the Secured Obligations of each Obligor shall not be affected by (i) the failure of the Lender to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Obligor under the provisions of any Loan Document or otherwise, as maker of (ii) any rescission, waiver, amendment or modification of, or any release from any of the Notes terms or other provisions of, any Loan Documents Document, or (iii) the failure to perfect any other person security interest in, or to proceed against the release of, any of the Collateral or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed on behalf of Trustthe Lender.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure The Secured Obligations of each Obligor shall not be subject to proceed against any Other Obligor’s propertyreduction, limitation, impairment or termination for any other party against whom Beneficiary might assert a claimreason, before proceeding against Grantor under this Deed including any claim of Trust; or
(ii) The waiver, release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against the Secured Obligations, and shall not be subject to any Other Obligor defense or any other party against whom Beneficiary might assert a claimsetoff, whether such releasecounterclaim, suspension, discharge recoupment or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden termination whatsoever by reason of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension invalidity, illegality or unenforceability of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Secured Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the Secured Obligations of each Obligor hereunder shall 44 not be discharged or impaired or otherwise affected by the failure of the Lender to assert any subsequent claim or demand or to enforce any remedy under any Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the Obligations performance of any of the Secured Obligations, or by any other act or omission that may or might in any reorganization manner or to any extent vary the risk of any Obligor or that would otherwise operate as a discharge of any Obligor as a matter of law or equity.
(c) To the fullest extent permitted by applicable law, each Obligor waives any defense based on or arising out of any defense of any other Obligor or the unenforceability of the Secured Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Obligor. The Lender may, at its election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Secured Obligations, make any other accommodation with any other Obligor, or exercise any other right or remedy available to them against any other Obligor, without affecting or impairing in any way the liability of any Obligor hereunder. Each Obligor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Obligor against any other Obligor, as the case concerning may be, or any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentssecurity.
Appears in 1 contract
Samples: Loan Agreement (Amyris, Inc.)
Additional Waivers. Grantor has executed (a) The Obligations are joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of Borrower hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any the failure of the Notes or other Loan Documents Agent or any other person Credit Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Agent or any other Credit Party.
(b) Any The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the payment in full in cash of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or set-off, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure to proceed against any Other Obligor’s property, of the Agent or any other party against whom Beneficiary might Credit Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed of Trust; or
(ii) The releaseAgreement, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor other Loan Document or any other party against whom Beneficiary might assert a claimagreement, whether such releaseby any waiver or modification of any provision of any thereof, suspensionby any default, discharge failure or impairment is explicitdelay, tacit willful or inadvertent; or
(iii) Beneficiary’s failure to pursue otherwise, in the performance of the Obligations, or by any other remedies available act or omission that may or might in any manner or to Beneficiary any extent vary the risk of any Borrower or that would reduce the burden otherwise operate as a discharge of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
any Borrower as a matter of law or equity (iv) Any extension of the time for other than the payment or performance in full in cash of any Other Obligor’s obligations under any Note, or any of all the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsObligations).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Borrower waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring defense of any new other Borrower or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Borrower, stay other than the payment in full in cash of all the Obligations. The Agent and the other Credit Parties may, at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any bankruptcy way the liability of any Borrower hereunder except to the extent that all the Obligations have been paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) Each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior payment in full in cash of all the Obligations and the termination of all Commitments to any Borrower under any Loan Document. In addition, any indebtedness of any Borrower now or hereafter held by any Borrower is hereby subordinated in right of payment to the prior payment in full of the Obligations. Until the Obligations are paid in full, none of the Borrowers will demand, xxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Agent to be credited against the payment of the Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands Agreement and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Revolving Loans made to another Borrower hereunder (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
Appears in 1 contract
Samples: Credit Agreement (GameStop Corp.)
Additional Waivers. Grantor has executed (a) The Liabilities are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of the Administrative Agent or any Revolving Credit Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Liabilities under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Administrative Agent.
(b) Any defense that may arise by The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the indefeasible payment in full in cash of the Liabilities), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Liabilities, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise unenforceability of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary Liabilities or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any subsequent Revolving Credit Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the Obligations performance of the Liabilities, or by any other act or omission that may or might in any reorganization manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Liabilities).
(c) To the fullest extent permitted by applicable law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Liabilities. The Administrative Agent may, at its election, foreclose on any security held by it by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Liabilities, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent that all the Liabilities have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Liabilities, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Liabilities. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Liabilities. None of the Borrowers will demand, xxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Administrative Agent and under the other Revolving Credit Lenders and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agreesGuarantor further waives, to the fullest extent permitted by applicable law, not to assert (i) any defense resulting from the absence, impairment or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker loss of any right of the Notes reimbursement, subrogation, contribution or other Loan Documents right or remedy of Guarantor against Seller or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed guarantor of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, the Guaranteed Obligations or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trustsecurity; or
(ii) The release, suspension, discharge any setoff or impairment counterclaim of any of Beneficiary’s rights against any Other Obligor Seller or any defense which results from any disability or other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge defense of Seller or impairment is explicit, tacit the cessation or inadvertent; or
(iii) Beneficiary’s failure to pursue stay of enforcement from any other remedies available to Beneficiary that would reduce the burden cause whatsoever of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
liability of Seller (iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice lack of validity or enforceability of the evidencePurchase Agreement); (iii) any right to exoneration of sureties which would otherwise be applicable; (iv) any right of subrogation or reimbursement and, creation if there are any other guarantors of the Guaranteed Obligations, any right of contribution, and right to enforce any remedy which Buyer now has or incurring may hereafter have against Seller , and any benefit of, and any right to participate in, any security now or hereafter received by Buyer; (v) all presentments, demands for performance, notices of non-performance, notices delivered under the Purchase Agreement, protests, notice of dishonor, and notices of acceptance of this Guaranty and notices of any new public or additional Obligations or obligation private foreclosure sale; (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(evi) Notice the benefit of any action statute of limitations; (vii) any appraisement, valuation, stay, extension, moratorium redemption or non action on the part of similar law or similar rights for marshalling; and (viii) any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held right to be informed by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor Buyer of the Obligations secured by this Deed financial condition of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, Seller or any other rights guarantor of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all the Guaranteed Obligations or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor change therein or any other party obligated to pay any circumstances bearing upon the risk of nonpayment or nonperformance of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until Guaranteed Obligations. Guarantor has the Obligations secured hereby is paid in full.
(i) Any duty on ability to and assumes the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible responsibility for being and keeping informed of the financial condition of Other Obligors or Seller and any successor in interest other guarantors of any Other Obligor the Guaranteed Obligations and of all other circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured herebyaffecting such nonpayment and nonperformance risks.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Washington Prime Group, L.P.)
Additional Waivers. Grantor has executed and delivered Without implying that this Deed Guarantee is intended to be governed by the laws of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties any state other than Grantor (each an “Other Obligor”). Grantor hereby agreesthe state of New York, to and without limiting any of the fullest extent permitted by lawother provisions and waivers set forth in this Guarantee, not to assert or take advantage ofGuarantor further agrees as follows:
(a) Any Guarantor agrees that while an Event of Default exists, Administrative Agent may elect to foreclose either nonjudicially or judicially against any real or personal property security (including, without limitation, the Project) it holds for the obligations of Borrower or Operating Lessee under the Loan Documents, or any part thereof, or accept an assignment of any such security in lieu of foreclosure, or compromise or adjust any part of such obligations, or make any other accommodation with Borrower, Operating Lessee or Guarantor, or exercise any other remedy against Borrower or Operating Lessee or any security. No such action by Administrative Agent will release or limit the liability of Guarantor to Administrative Agent or any Lender, who shall remain liable under this Guarantee after the action, even if the effect of that action is to deprive Guarantor of the right to require Beneficiary to proceed against any Other Obligorcollect reimbursement from Borrower, as maker of any of the Notes or other Loan Documents Operating Lessee or any other person for any sums paid to Administrative Agent or to proceed any Lender, or Guarantor’s rights of subrogation, contribution, or indemnity against Borrower, Operating Lessee or exhaust any other person. Without limiting the foregoing, it is understood and agreed that on any foreclosure or assignment in lieu of foreclosure of any security held by Beneficiary at Administrative Agent, such security will no longer exist, and that any time right that Guarantor might otherwise have, on full payment of the obligations of Borrower or Operating Lessee under the Loan Documents by Guarantor, to participate in any such security or to pursue be subrogated to any other remedy rights of Administrative Agent or any Lender with respect to any such security will be nonexistent; nor shall Guarantor by deemed to have any right, title, interest or claim under any circumstances in Beneficiary’s power before exercising or to any right real or remedy under this Deed personal property held by Administrative Agent, any Lender or any third party following any foreclosure or assignment in lieu of Trustforeclosure of any such security.
(b) Any Guarantor understands and acknowledges that if Administrative Agent forecloses judicially or nonjudicially against any real property security for the Borrower’s or Operating Lessee’s obligations, such foreclosure could impair or destroy any right or ability that Guarantor may have to seek reimbursement, contribution, or indemnification for any amounts paid by Guarantor under this Guarantee. Guarantor further understands and acknowledges that in the absence of this waiver such potential impairment or destruction of Guarantor’s rights, if any, may entitle Guarantor to assert a defense to this Guarantee based on Code of Civil Procedure §580d as interpreted in Union Bank v. Xxxxxxx, (1968) 265 CA 2d 40, 71 CR 64, on the grounds, among others, that a lender should be estopped from pursuing a guarantor because Administrative Agent’s election to foreclose may arise by reason of:
impair or destroy the subrogation, reimbursement, contribution, or indemnification rights of Guarantor. By execution of this Guarantee, Guarantor intentionally, freely, irrevocably, and unconditionally: (i) Beneficiary’s failure to proceed waives and relinquishes that defense and agrees that Guarantor will be liable under this Guarantee even though Administrative Agent had foreclosed judicially or nonjudicially against any Other Obligorreal or personal property collateral for Borrower’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of TrustOperating Lessee’s obligations; or
(ii) The release, suspension, discharge agrees that Guarantor will not assert that defense in any action or impairment of any of Beneficiary’s rights against any Other Obligor proceeding in which Administrative Agent or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertentLender seeks to enforce this Guarantee; or
and (iii) Beneficiary’s failure acknowledges and agrees that the rights and defenses waived by Guarantor in this Guarantee include any right or defense that Guarantor may have or be entitled to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby assert based on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance arising out of any Other Obligor’s obligations under any Noteone or more of Code of Civil Procedure §§580a, 580b, 580d, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust726, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsCivil Code §2848.
(c) DemandGuarantor intentionally, protest freely, irrevocably and notice unconditionally waives and relinquishes all rights which may be available to it under any provision of California law or under any kindCalifornia judicial decision, including, without limitation, Section 580a and 726(b) of the following notices:California Code of Civil Procedure, to limit the amount of any deficiency judgment or other judgment which may be obtained against Guarantor under this Guarantee to not more than the amount by which the unpaid obligations of Borrower under the Loan Documents guaranteed hereby plus all other indebtedness due from Borrower under the Loan Documents exceeds the fair market value or fair value of any real or personal property securing said obligations of Borrower under the Loan Documents and any other indebtedness due from Borrower under the Loan Documents, including, without limitation, all rights to an appraisement of, judicial or other hearing on, or other determination of the value of said property. Guarantor acknowledges and agrees that, as a result of the foregoing waiver, Administrative Agent and the Lenders may be entitled to recover from Guarantor an amount which, when combined with the value of any real or personal property foreclosed upon by Administrative Agent (or the proceeds of the sale of which have been received by Administrative Agent or the Lenders) and any sums collected by Administrative Agent and the Lenders from Borrower or other persons, might exceed the amount of the obligations of Borrower under the Loan Documents guaranteed hereby plus all other indebtedness due from Borrower under the Loan Documents.
(d) Notice Guarantor waives all rights and defenses that Guarantor may have because Borrower’s debt is secured by real property; this means, among other things: (i) Administrative Agent and the Lenders may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Borrower or Operating Lessee; and (ii) if Administrative Agent or the Lenders foreclose on any real property collateral pledged by Borrower or Operating Lessee: (A) the amount of the evidenceObligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, creation even if the collateral is worth more than the sale price; and (B) Administrative Agent and the Lenders may collect from Guarantor even if Administrative Agent, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from Borrower or incurring Operating Lessee. This is an unconditional and irrevocable waiver of any new or additional rights and defenses Guarantor may have because the Guaranteed Obligations or obligation (provided that such Obligations or obligation is not are secured by this Deed real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of Trust); orthe California Code of Civil Procedure. Guarantor specifically waives any right to a fair value hearing, and any and all other rights it may have under Section 580a of the California Code of Civil Procedure.
(e) Notice Guarantor waives all rights and defenses arising out of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of Administrative Agent and the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by BeneficiaryLenders, even though the that election of remedies, such as a nonjudicial foreclosure with respect to this Deed of Trustsecurity for the Guaranteed Obligations, will destroy Grantorhas destroyed Guarantor’s rights of subrogation and reimbursement against Other Obligors the principal by the operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary Procedure or otherwise.
(if) Guarantor waives a deficiency judgment in a judicial foreclosureall rights and defenses which might otherwise be available to Guarantor under any guarantor, suretyship or (ii) exercises the power of sale other defenses under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) law of the state of California, including, without limitation, California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433, and California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against BeneficiarySection 359.5.
(hg) Any rights arising because Guarantor agrees that if the maturity of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other ObligorGuaranteed Obligation is accelerated by bankruptcy, by way of subrogation to the rights of Beneficiary insolvency or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of such maturity shall also be deemed accelerated for the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien purpose of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and Guarantee without demand on or notice to or consent of Grantor (i) release any party now or hereafter liable for Guarantor, and, to the performance of fullest extent permitted by applicable Law, Guarantor hereby waives any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute demand or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentsnotice.
Appears in 1 contract
Samples: Lease Reserve and Interest Carry Guarantee (Maguire Properties Inc)
Additional Waivers. Grantor has executed (a) The Obligations are joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by lawapplicable Law, the obligations of each Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any demand to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker any other Loan Document or otherwise, (ii) any release of any other Loan Party from any of the Notes terms or other Loan Documents provisions of this Agreement or any other person Loan Document, or (iii) the failure to proceed against perfect any security interest in, or exhaust the release of, any of the Collateral or other security held by Beneficiary at any time or to pursue on behalf of the Agent or any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustCredit Party.
(b) Any The obligations of each Loan Party shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Revolving Credit Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or setoff, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure to proceed against any Other Obligor’s property, of the Agent or any other party against whom Beneficiary might Credit Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed Agreement, any other Loan Document or any other agreement, by any waiver or modification of Trust; or
(ii) The releaseany provision of any thereof, suspensionany default, discharge failure or impairment delay, willful or otherwise, in the performance of any of Beneficiary’s rights against any Other Obligor the Obligations, or by any other party against whom Beneficiary act or omission that may or might assert a claim, whether such release, suspension, discharge in any manner or impairment is explicit, tacit to any extent vary the risk of any Loan Party or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden indefeasible payment in full in cash of all of the Obligations secured hereby on Grantor’s interests in after the Trust Premises; or
(iv) Any extension termination of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsRevolving Credit Commitments).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice defense of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on Party or the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Loan Party other than the indefeasible payment in full in cash of all the Obligations and the termination of the Revolving Credit Commitments. The Agent and the other Credit Parties may, stay at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them, without affecting or impairing in any bankruptcy way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Revolving Credit Commitments have been terminated. Each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable Law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) Each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. Any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior indefeasible payment in full of the Obligations but may be paid in the ordinary course of business. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Agent to be credited against the payment of the applicable Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands Agreement and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents. Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrower in an amount, for each of such other Borrower, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
Appears in 1 contract
Samples: Credit Agreement (Alco Stores Inc)
Additional Waivers. Grantor has executed a. In consideration of Resigning Agent, Successor Agent and delivered the Banks entering into this Deed of Trust Agreement, Borrower hereby unconditionally waives and relinquishes, and agrees not to assert in any action or proceeding, any and all rights, privileges, defenses and benefits it may now have or in the future obtains in connection with the intent Existing Credit Agreement, the Existing Loan Documents, this Agreement, or the Additional Loan Documents and the loans evidenced thereby, under (i) any law which may limit on the amount of subjecting its interests in a deficiency judgment with respect to any Obligation; (ii) any bar to deficiency judgments, (iii) any requirement of law that Successor Agent, Funding Agent, Collateral Agent or the Trust Premises to the lien of this Deed of Trust as Banks exhaust any Collateral or other security for the Obligations before proceeding against Borrower; (iv) any law which include Obligations of parties other than Grantor may prohibit Successor Agent, Funding Agent, Collateral Agent or the Banks from enforcing their rights and remedies against Borrower by both a private trustee’s sale and an action in court; (each v) any law which requires that a court action to enforce the Banks’ rights be an “Other Obligor”). Grantor hereby agrees, action to the fullest extent permitted by law, not to assert or take advantage of:
foreclose on any Collateral; (avi) Any right to require Beneficiary to proceed against any Other Obligor, as maker of defense based upon any of the Notes legal disability or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed defense of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s propertyBorrower, or any other party against whom Beneficiary might assert a claimperson, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden by reason of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension cessation or limitation of the time for liability of Borrower from any cause other than full payment of all sums payable under the payment or performance of any Other Obligor’s obligations under any Note, Existing Credit Agreement or any of the other Existing Loan Documents, this Agreement, and the Additional Loan Documents; or
(vvii) Any amendment of this Deed of Trust, any Note or defense based upon any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor the officers, directors, members, partners or agents acting or purporting to act on behalf of Borrower, or any person shareholder or persons; or
(vii) The failure principal of Beneficiary to file or enforce a claim against the estate (in either administrationBorrower, bankruptcy or any defect in the formation of Borrower; (viii) any defense based upon the application by Borrower of the proceeds of the loans evidenced by the Existing Credit Agreement or the Existing Loan Documents for purposes other proceedingsthan the purposes represented by Borrower to the Banks or intended or understood by the Banks; (ix) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal; (x) any defense based upon Successor Agent’s, Collateral Agent’s or the Banks’ election, in any proceeding instituted under the Federal Bankruptcy Code, of the application of Section 1111(b)(2) of any partner of any Other Obligor the Federal Bankruptcy Code or any successor statute; (xi) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy Code; (xii) any right of subrogation, any right to enforce any remedy which Successor Agent, Funding Agent, Collateral Agent or the Banks may have against Borrower and any right to participate in, or benefit from, any security for the Obligations now or hereafter held by the Banks; (xiii) notice of acceptance, presentment, demand for payment, protest, notice of protest, or any and all notice of non-payment, non-performance or non-observance, or other person proof, or persons.
(c) Demand, protest and notice or demand of any kind; and (xiv) the benefit of any statute of limitations affecting the liability of Borrower hereunder or the enforcement hereof. In addition, includingBorrower hereby waives any default or defect in, without limitationor failure to abide by, any and all notices and procedures required of Agent or any Bank pursuant to applicable laws and the following notices:
(d) Notice terms of the evidence, creation Existing Credit Agreement or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary Existing Loan Documents in connection with the Existing Defaults, and hereby waives and releases any obligation and all rights or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trustclaims that it may have with respect thereto.
(gb. Borrower hereby unconditionally represents, warrants, acknowledges and agrees that the waivers contained in Section 9.15(a) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary being given (i) waives a deficiency judgment in a judicial foreclosuresubsequent to and not as consideration for the execution of the Existing Credit Agreement or the Existing Loan Documents, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure making or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) renewing of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trustloans evidenced thereby, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood with the full knowledge and agreed that Grantor is fully responsible for being and keeping informed understanding of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligationconsequences thereof, (iii) accept additional security thereforafter Borrower has obtained the advice of legal counsel in connection therewith, and (iv) alterwith the intent that the waivers will be relied on by Successor Agent, substitute or release any property securing Funding Agent, Collateral Agent and the Banks and enforceable against Borrower. Without the necessity of further proof, Borrower further represents, warrants, acknowledges and agrees that Successor Agent, Funding Agent, Collateral Agent and the Banks are relying on such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to waivers in entering into this Deed of TrustAgreement, and that Successor Agent, Funding Agent, Collateral Agent and the Banks would not have entered into this Agreement if Borrower did not provide the foregoing waivers to Successor Agent, Funding Agent, Collateral Agent and the Banks. Grantor Borrower hereby acknowledges and agrees that Beneficiary may enforce this Deed the waivers of Trust without the necessity of resorting to or exhausting any security or collateral securing the ObligationsBorrower contained herein are reasonable, without the necessity of proceeding against any guarantorare supported by adequate and fair consideration. If, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of notwithstanding the foregoing, any subsequent modification of the Obligations in waivers are determined to be contrary to any reorganization case concerning any Other Obligor applicable law or public policy, such waivers shall not affect be effective to the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentsmaximum extent permitted by law.
Appears in 1 contract
Additional Waivers. Grantor has executed Owner hereby waives and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises relinquishes all rights and remedies accorded by applicable law to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, sureties or guarantors and agrees not to assert or take advantage of:
of any such rights or remedies, including without limitation (a) Any any right to require Beneficiary Administrative Agent or the Banks to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents Portfolio Entity or any other person Person or to proceed against or exhaust any other security held by Beneficiary Administrative Agent or the Banks at any time or to pursue any other remedy in Beneficiary’s Administrative Agent's or the Banks' power before exercising any right or remedy under this Deed of Trust.
proceeding against Owner, (b) Any any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of any Other Obligor’s property, Portfolio Entity or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge Person or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary Administrative Agent or the Banks to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedingsproceeding) of any partner of any Other Obligor Portfolio Entity or any other person or persons.
Person, (c) Demanddemand, presentment, protest and notice of any kind, including, including without limitation, the following notices:
(d) Notice limitation notice of the evidenceexistence, creation or incurring of any new or additional Obligations indebtedness or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non non-action on the part of any Other Obligor Portfolio Entity, Administrative Agent, the Banks, any endorser or Beneficiary creditor of the foregoing or on the part of any other Person 11 461 under this or any other instrument in connection with any obligation or evidence of Obligations indebtedness held by Beneficiary Administrative Agent or the Banks as collateral; or
collateral or in connection with any Obligations, (fd) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary Administrative Agent or the Banks, including without limitation an election to foreclose, either proceed by non-judicial foreclosure or by exercise of the power of sale, this Deed of Trustrather than judicial foreclosure, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s otherwise impairs the subrogation rightsrights of Owner, rights the right of Owner to proceed against any Other Obligor a Portfolio Entity or another Person for reimbursement, or both, (e) any defense based on any offset against any amounts which may be owed by any Person to Owner for any reason whatsoever, (f) any defense based on any act, failure to act, delay or omission whatsoever on the part of a Portfolio Entity of the failure by a Portfolio Entity to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents, (g) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal provided, that, upon payment in full of the Obligations, this Agreement shall no longer be of any force or effect, (h) any defense, setoff or counterclaim which may at any time be available to or asserted by a Portfolio Entity against Administrative Agent, the Banks or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of Person under the Obligations secured hereby which defenses are based on an election of remedies by BeneficiaryCredit Documents, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary Administrative Agent or the Banks to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor Owner any facts Beneficiary Administrative Agent or the Banks may now know or may hereafter know about any Other Obligor or any successors in interest (if any) Portfolio Entity, regardless of whether Beneficiary (i) has Administrative Agent or the Banks have reason to believe that any such facts materially increase the risk beyond the risk that which Grantor Owner intends to assume by executing this Deed of Trustassume, (ii) has or have reason to believe that these such facts are unknown to Grantor Owner, or (iii) has have a reasonable opportunity to communicate such facts to GrantorOwner, it being understood and agreed since Owner acknowledges that Grantor Owner is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor the Portfolio Entities and of all circumstances bearing on the risk of non non-payment of any Obligations obligations and liabilities hereby guaranteed, (j) the fact that any Portfolio Entity may at any time in the future dispose of all or part of its direct or indirect interest in any Other Obligor to Beneficiary that is secured hereby.
other Portfolio Entity, (k) Any right to object to any defense based on any change in the release time, manner or place of any portions payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent or departure from the terms of the Trust Premises from Credit Documents, (l) any defense arising because of Administrative Agent's or the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary mayBanks' election, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent any proceeding instituted under the Federal Bankruptcy Code, of Grantor (ithe application of Section 1111(b)(2) release any party now or hereafter liable for of the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security thereforFederal Bankruptcy Code, and (ivm) alter, substitute any defense based upon any borrowing or release any property securing such performance. Before executing this Deed grant of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any a security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy interest under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension Section 364 of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan DocumentsFederal Bankruptcy Code.
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Additional Waivers. Grantor has executed The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor each Borrower.
(each an “Other Obligor”). Grantor hereby agrees, to a) To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any the failure of the Notes or other Loan Documents Agent or any other person Secured Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Agent or any other Secured Party.
(b) Any defense that may arise by The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the Payment in Full of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any subsequent Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the Obligations performance of the Obligations, or by any other act or omission that may or might in any reorganization case concerning manner or to any Other Obligor extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the Payment in Full of the Obligations).
(c) To the fullest extent permitted by applicable law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior Payment in Full of Grantor the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior Payment in Full of the Obligations. None of the Borrowers will demand, xxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Secured Parties and under shall forthwith be paid to the other Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Dillard's, Inc.)
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, not to assert or take advantage of:
(a) Any right Each Borrower hereby consents and agrees that Agent and/or Lenders may (subject to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary Section 9.15) at any time or from time to pursue any other remedy time in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
their discretion (i) Beneficiary’s failure to proceed against any Other Obligor’s propertysettle, compromise or grant releases for liabilities of other Borrower, and/or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge Person or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered Persons liable for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of TrustObligations, (ii) has reason to believe that these facts are unknown to Grantor in the exercise of its remedies under Section 8.3 of this Agreement, exchange, release, surrender, sell, subordinate, or compromise any Collateral of any party now or hereafter securing any of the Obligations, and (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood apply any and agreed that Grantor is fully responsible for being and keeping informed all payments received at any time against the Obligations in any order as Agent or Lenders may determine; all of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, foregoing in such manner and upon such terms and at such times as Beneficiary deems best Agent or Lenders may see fit, and without demand or notice to or further consent from such Borrower who hereby agrees to be and shall remain bound upon this Agreement notwithstanding any such action on Agent's or Lenders' part.
(b) The liability of Grantor each Borrower hereunder is absolute and unconditional and shall not be reduced, impaired or affected in any way by reason of (i) release any party now failure to obtain, retain or hereafter liable for preserve, or the performance lack of prior enforcement of, any such obligationrights against any Person or Persons (including the other Borrower and the Sureties) or in any Property, (ii) extend the time for the performance invalidity or unenforceability of any such obligationObligations or rights in any Collateral, (iii) accept additional security thereforany delay in making demand upon the Borrower or any delay in enforcing, and or any failure to enforce, any rights against the other Borrower or in any Collateral even if such rights are thereby lost, (iv) alterany failure, substitute neglect or release omission to obtain, perfect or retain any property lien upon, protect, exercise rights against, or realize on, any Property of either Borrower, the Sureties, or any other party securing such performance. Before executing this Deed the Obligations, (v) the existence or nonexistence of Trustany defenses which may be available to the other Borrower, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable Sureties with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without or (vi) the necessity commencement of any bankruptcy, reorganization, liquidation, dissolution or receivership proceeding or case filed by or against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension either of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan DocumentsBorrowers.
Appears in 1 contract
Samples: Loan and Security Agreement (Capital Associates Inc)
Additional Waivers. Grantor has executed (i) The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of the Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s propertyother Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other party against whom Beneficiary might assert a claimagreement, before proceeding against Grantor including with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trust; orthe security held by or on behalf of the Lender.
(ii) The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations), including any claim of waiver, release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of the Lender to assert any subsequent claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations).
(iii) To the fullest extent permitted by applicable law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations. The Lender may, at its election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any reorganization way the liability of any Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(iv) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Obligations. None of the Borrowers will demand, sue for, or otherwise attempt to collect any such indebtednexx. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Lender and under shall forthwith be paid to the other Lender to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Samples: Revolving Credit Agreement (Nutramax Products Inc /De/)
Additional Waivers. Grantor has executed (a) The Liabilities are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Obligor hereunder shall not be affected by (i) the failure of the Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Obligor under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Obligor of the Liabilities under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Lender.
(b) Any defense that may arise by The obligations of each Obligor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the indefeasible payment in full in cash of the Liabilities), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Liabilities, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise unenforceability of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary Liabilities or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the obligations of each Obligor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Lender to assert any subsequent claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, wilful or otherwise, in the Obligations performance of the Liabilities, or by any other act or omission that may or might in any reorganization manner or to any extent vary the risk of any Obligor or that would otherwise operate as a discharge of any Obligor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Liabilities).
(c) To the fullest extent permitted by applicable law, each Obligor waives any defense based on or arising out of any defense of any other Obligor or the unenforceability of the Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Obligor, other than the indefeasible payment in full in cash of all the Liabilities. The Lender may, at its election, foreclose on any security held by it by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Liabilities, make any other accommodation with any other Obligor, or exercise any other right or remedy available to them against any other Obligor, without affecting or impairing in any way the liability of any Obligor hereunder except to the extent that all the Liabilities have been indefeasibly paid in full in cash. Pursuant to applicable law, each Obligor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Obligor against any other Obligor, as the case concerning may be, or any Other security.
(d) Upon payment by any Obligor of any Liabilities, all rights of such Obligor against any other Obligor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Liabilities. In addition, any indebtedness of any Obligor now or hereafter held by any other Obligor is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Liabilities. None of the Obligors will demand, xxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Obligor on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Obligor, such amount shall be held in trust for the benefit of the Lender and under shall forthwith be paid to the other Lender to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Samples: Loan and Security Agreement (Charlotte Russe Holding Inc)
Additional Waivers. Grantor has executed Borrower hereby agrees that its obligations under this Agreement and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor Loan Documents shall not be affected or impaired by, and hereby agrees, to the fullest extent permitted by law, waives and agrees not to assert or take advantage of:
of any defense based on: (a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor Palomino Park or any person other Person, or persons; or
(vii) The the failure of Beneficiary Agent or Letter of Credit Issuer to file or enforce a claim against the estate (either in either administration, bankruptcy or in any other proceedingsproceeding) of any partner of any Other Obligor Palomino Park or any other person Person; (b) the voluntary or persons.
involuntary liquidation, sale or other disposition of all or substantially all of the assets of Palomino Park; (c) Demandthe voluntary or involuntary receivership, protest and notice insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, assignment, composition, or readjustment of, or any kindsimilar proceeding affecting, includingPalomino Park or any other Person, without limitation, the following notices:
or any of Palomino Park's or such other Person's properties or assets; (d) Notice the failure of the evidenceAgent, Letter of Credit Issuer or any of the Banks to give notice of the existence, creation or incurring incurrence of any new or additional Obligations Obligation or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action nonaction on the part of any Other Obligor or Beneficiary other Person whomsoever in connection with any obligation Obligation; (e) any failure or evidence delay of Obligations held by Beneficiary as collateralthe Agent or the Letter of Credit Issuer to commence an action against Palomino Park, to assert or enforce any remedies against Palomino Park under the Reimbursement Agreement or any other of the Related Documents, or to realize upon any security; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason failure of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary the Agent, Letter of Credit Issuer or any of the Banks to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor Borrower any facts Beneficiary it may now know or may hereafter know about any Other Obligor regarding Palomino Park or any successors in interest (if any) regardless of the Bonds, whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond to Borrower or not; (g) the risk which Grantor intends to assume by executing this Deed invalidity or unenforceability of Trustthe Bonds, the Reimbursement Agreement or the other Related Documents; (iih) has reason to believe that these facts are unknown to Grantor the compromise, settlement, release or termination of any or all of the obligations of Palomino Park under the Reimbursement Agreement or the other Related Documents; or (iiii) has a reasonable opportunity to communicate such facts the fullest extent permitted by law, any other legal, equitable or surety defenses whatsoever to Grantorwhich Borrower might otherwise be entitled, it being understood the intention that the obligations of Borrower hereunder are absolute, unconditional and agreed that Grantor is fully responsible for being irrevocable Borrower further expressly waives any and keeping informed all rights of subrogation to Agent, Letter of Credit Issuer and the financial condition of Other Obligors or Banks against any successor in interest of Person having any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable liability with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with BeneficiaryBonds (including, without limitation, Palomino Park), and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor Borrower hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or rights to enforce any other right. Notwithstanding remedy which Agent, Letter of Credit Issuer or the Banks may have against any modification, discharge or extension of the Obligations or Person having any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding liability with respect to Other Obligors. Without the Bonds (including, without limitation, Palomino Park), and any rights to participate in any way limiting collateral for such Person's obligations.";
(r) By deleting Schedule 1 attached to the generality Credit Agreement in its entirety, and inserting in lieu thereof Schedule 1 attached hereto and made a part hereof;
(s) All references in the Credit Agreement to "Letters of Credit" shall be deemed to refer to the Letter of Credit;
(t) All references in Credit Agreement to "Letters of Credit accepted but unpaid" shall be deemed to refer to "any draws under the Letter of Credit accepted but unpaid"; and
(u) Any amounts which may now or hereafter be owed by Borrower to Letter of Credit Issuer under the Reimbursement Agreement or the Related Documents shall in all circumstances be considered unsecured Indebtedness of Borrower for the purposes of the foregoingCredit Agreement, regardless of whether Letter of Credit Issuer may now or hereafter have any subsequent modification collateral (such as pledged Bonds or a deed of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentstrust) for such obligations.
Appears in 1 contract
Samples: Revolving Credit Agreement (Wellsford Residential Property Trust)
Additional Waivers. Grantor has executed (i) Each Indemnitor waives, and delivered agrees that it will not at any time insist upon, plead or in any manner whatsoever claim or take the benefit or advantage of, any and all appraisal, valuation, stay, extension, marshaling of assets or redemption laws, or right of homestead or exemption, whether now or at any time hereafter in force, which may delay, prevent or otherwise affect the performance by such Indemnitor of its/his/her obligations under, or the enforcement by Indemnitee of, this Deed Agreement. Each Indemnitor hereby waives diligence, presentment and demand, notice of Trust any other fact which might increase such Indemnitor’s risk hereunder, notice of presentment for payment, demand, protest and notice thereof as to any instrument, and notice of default, with respect to any of the Loan, and all other demands whatsoever and waives the benefit of all provisions of law which are or might be in conflict with the intent terms of subjecting this Agreement. Each Indemnitor represents, warrants and agrees that, as of the date of this Agreement, its interests in the Trust Premises obligations under this Agreement are not subject to any counterclaims, offsets or defenses against Indemnitee of any kind.
(ii) Each Indemnitor agrees that nothing contained herein shall prevent Indemnitee from foreclosing on the lien of this Deed any Security Instrument, or from exercising any rights available to it thereunder, including, but not limited to, any waiver of Trust as the security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agreesLoan described in the Security Instruments, to and that the fullest extent permitted by law, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker exercise of any of the Notes aforesaid rights shall not constitute a legal or other Loan Documents or equitable discharge of such Indemnitor. Each Indemnitor expressly waives any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense and all suretyship defenses that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies be available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests such Indemnitor, such as defenses in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense its favor based upon an election of remedies by Beneficiary to forecloseIndemnitee that destroys, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursementdiminishes, or any other rights of Grantor affects such Indemnitor’s right to proceed against any other person party for reimbursement, contribution, indemnity or security. Grantor waives all rights and defenses otherwise, including, without limitation, any election by Indemnitee to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as conduct a nonjudicial foreclosure with respect to this Deed of Trustsale under any Security Instrument, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosurefurther including, without limitation, any and all defenses, rights, or (ii) exercises the power of sale estoppels that might otherwise arise under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency or in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the connection with California Code of Civil Procedure which provides Sections 580b, 580d, 580a, 726.5 or 726 as a result of any such election, or otherwise, including, without limitation, any right to cause a fair value hearing to be held. Each Indemnitor understands and agrees that no judgment shall be rendered for the preceding sentence is a knowing waiver of any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained defense that may arise in the Deed future to enforcement of Trust. Grantor understands that absent this indemnity under California Code of Civil Procedure Sections 580b, 580d, 580a or 726 (or any other statute limiting a lender’s right to a deficiency or the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to amount of a deficiency following a non-judicial or judicial sale) based on Indemnitee’s election to conduct a private, nonjudicial foreclosure sale following a default by any Borrower even though such an election destroyed, diminished or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any otherwise affected such Indemnitor’s rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation or the right of contribution, reimbursement or indemnity from any part, with the result that such Indemnitor’s liability under this Agreement became nonreimbursable in whole or in part. Nevertheless, each Indemnitor hereby authorizes and empowers Indemnitee to the exercise, in its sole discretion, any rights of Beneficiary or otherwiseand remedies, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebycombination thereof, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligorthen be available, whether permanent or temporary, since it is the intent and whether assented to by Beneficiary, Grantor hereby agrees purpose of such Indemnitor that it the obligations hereunder shall be obligated hereunder to pay absolute, independent and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed unconditional under any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorscircumstances. Without in any way limiting the generality of the foregoing, each Indemnitor hereby expressly waives any subsequent modification and all benefits under California Civil Code Section 2809, 2810, 2815, 2819, 2822, 2839, 2845, 2846, 2847, 2848, 2849, 2850, 2899, 3433 and California Code of Civil Procedure Sections 580b, 580a, 580d and 726. Notwithstanding any foreclosure of the Obligations lien of any Security Instrument or security agreement with respect to any or all of any real or personal property secured thereby, whether by the exercise of the power of sale contained therein, by an action for judicial foreclosure or by an acceptance of a deed in lieu of foreclosure, each Indemnitor shall remain bound under this Agreement. Nothing shall discharge or satisfy the liability of any reorganization case concerning Indemnitor hereunder except the full performance hereof by such Indemnitor. Further, each Indemnitor consents and agrees that Indemnitee shall be under no obligation to marshal any Other Obligor shall not affect the obligation assets in favor of Grantor to perform its obligations hereunder and under the other Loan Documentssuch Indemnitor.
(iii) WITHOUT LIMITING THE FOREGOING, EACH INDEMNITOR WAIVES ALL RIGHTS AND DEFENSES THAT SUCH INDEMNITOR MAY HAVE IF THIS AGREEMENT IS DEEMED OR BECOMES SECURED BY REAL PROPERTY. THIS MEANS, AMONG OTHER THINGS:
(A) THE INDEMNITEE MAY COLLECT FROM SUCH INDEMNITOR WITHOUT FIRST FORECLOSING ON ANY REAL OR PERSONAL PROPERTY COLLATERAL PLEDGED BY THE BORROWER OR ANY OTHER INDEMNITOR; AND
(B) IF THE INDEMNITEE FORECLOSES ON ANY REAL PROPERTY COLLATERAL PLEDGED BY THE BORROWER OR ANY OTHER INDEMNITOR:
(1) THE AMOUNT OF INDEMNITEE’S CLAIM HEREUNDER MAY BE REDUCED ONLY BY THE PRICE FOR WHICH THAT COLLATERAL IS SOLD AT THE FORECLOSURE SALE, EVEN IF THE COLLATERAL IS WORTH MORE THAN THE SALE PRICE; AND
(2) THE INDEMNITEE MAY COLLECT FROM SUCH INDEMNITOR EVEN IF THE INDEMNITEE, BY FORECLOSING ON THE REAL PROPERTY COLLATERAL, HAS DESTROYED ANY RIGHT SUCH INDEMNITOR MAY HAVE TO COLLECT FROM THE BORROWER. THIS IS AN UNCONDITIONAL AND IRREVOCABLE WAIVER OF ANY RIGHTS AND DEFENSES THAT EACH INDEMNITOR MAY HAVE IF THIS AGREEMENT IS DEEMED OR BECOMES SECURED BY REAL PROPERTY. THESE RIGHTS AND DEFENSES INCLUDE, BUT ARE NOT LIMITED TO, ANY RIGHTS OR DEFENSES BASED UPON CALIFORNIA CODE OF CIVIL PROCEDURE SECTIONS 580a, 580b, 580d, OR 726.
Appears in 1 contract
Samples: Environmental Indemnity Agreement (American Realty Capital Hospitality Trust, Inc.)
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises Pledgor waives any right to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, require Bank to the fullest extent permitted by law, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligorperson, as maker of any of the Notes or other Loan Documents or any other person or to (b) proceed against or exhaust any other security held by Beneficiary at any time collateral, or to (c) pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of TrustBank's power; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary waives any defense arising by reason of any disability or other defense of Debtor or any other person, or by reason of the cessation from any cause whatsoever of the liability of Debtor or any other person. Until the Indebtedness is paid in full, Pledgor waives any right of subrogation, reimbursement, indemnification, and contribution (contractual, statutory or otherwise), including without limitation any claim or defense based upon an election right of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise subrogation under the Bankruptcy Code (Title 11 of the power U.S. Code) or any successor statute, arising from the existence or performance of salethis Security Agreement, this Deed and Pledgor waives any right to enforce any remedy which Bank now has or may hereafter have against Debtor or against any other person and waives any benefit of Trust, which and any right to participate in any manner impairsCollateral or security whatsoever now or hereafter held by Bank. If any Pledgor is not also a Debtor with respect to a specified indebtedness, reducessuch Pledgor authorizes Bank without notice or demand and without affecting Pledgor's liability hereunder, releasesfrom time to time to: (a) renew, destroys extend, accelerate or extinguishes Grantor’s subrogation rightsotherwise change the time for payment of or otherwise change the terms of the Indebtedness or any part thereof, rights to proceed against including increase or decrease of the rate of interest thereon; (b) take and hold security, other than the Collateral, for the payment of the Indebtedness or any Other Obligor for reimbursementpart thereof, and exchange, enforce, waive and release the Collateral or any part thereof or any such other security; and (c) release or substitute Debtor or any one or more of them, or any of the endorsers or guarantors of the Indebtedness or any part thereof, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiaryparties thereto.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Samples: Business Loan Agreement (Chromavision Medical Systems Inc)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered several obligations of Petsmart and each Subsidiary Credit Party. Petsmart and each Subsidiary Credit Party hereby assumes, guarantees, and agrees to discharge all Obligations of all other obligors. In that regard, any Subsidiary Credit Party for whose account a Letter of Credit is to be issued shall, prior to the date of issuance, execute and deliver to the Issuing Bank a joinder to, and assumption of obligations under, this Deed Agreement (in addition to any letter of Trust with credit application or other documents required by the intent of subjecting its interests Issuing Bank) in the Trust Premises to the lien of this Deed of Trust form attached hereto as security for the Obligations which include Obligations of parties other than Grantor Exhibit A.
(each an “Other Obligor”). Grantor hereby agrees, to b) To the fullest extent permitted by lawApplicable Law, the obligations of Petsmart and each Subsidiary Credit Party hereunder shall not be affected by (i) the failure of the Issuing Bank to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s propertyother obligor under the provisions of this Agreement, any other Credit Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Credit Document, or any other party against whom Beneficiary might assert a claimagreement, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or including with respect to any other party against whom Beneficiary might assert a claimobligor, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s the failure to pursue perfect any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Notesecurity interest in, or the release of, any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note security held by or any on behalf of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsIssuing Bank.
(c) DemandTo the fullest extent permitted by Applicable Law, protest the obligations of Petsmart and notice each Subsidiary Credit Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the payment in full in cash of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any kind, including, without limitation, the following notices:
(d) Notice of the evidenceObligations, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is and shall not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right be subject to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each obligor hereunder shall not be discharged or impaired or otherwise affected by any subsequent modification default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any obligor or that would otherwise operate as a discharge of any obligor as a matter of law or equity (other than the payment in full in cash of all the Obligations).
(d) To the fullest extent permitted by Applicable Law, each obligor waives any defense based on or arising out of any defense of any other obligor or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other obligor, other than the payment in full in cash of all the Obligations. The Issuing Bank may, at its election, foreclose on any security held by it by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other obligor, or exercise any other right or remedy available to it against any other obligor, without affecting or impairing in any reorganization way the liability of any obligor hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each obligor waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such obligor against any other obligor, as the case concerning may be, or any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.security. [SIGNATURE PAGES FOLLOW]
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Secured Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to To the fullest extent permitted by applicable law, the Secured Obligations of each Obligor shall not be affected by (i) the failure of the Lender to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Obligor under the provisions of any Loan Document or otherwise, as maker of (ii) any rescission, waiver, amendment or modification of, or any release from any of the Notes terms or other provisions of, any Loan Documents Document, or (iii) the failure to perfect any other person security interest in, or to proceed against the release of, any of the Collateral or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed on behalf of Trustthe Lender.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure The Secured Obligations of each Obligor shall not be subject to proceed against any Other Obligor’s propertyreduction, limitation, impairment or termination for any other party against whom Beneficiary might assert a claimreason, before proceeding against Grantor under this Deed including any claim of Trust; or
(ii) The waiver, release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against the Secured Obligations, and shall not be subject to any Other Obligor defense or any other party against whom Beneficiary might assert a claimsetoff, whether such releasecounterclaim, suspension, discharge recoupment or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden termination whatsoever by reason of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension invalidity, illegality or unenforceability of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Secured Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the Secured Obligations of each Obligor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Lender to assert any subsequent claim or demand or to enforce any remedy under any Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Secured Obligations, or by any other act or omission that may 59
(c) To the fullest extent permitted by applicable law, each Obligor waives any defense based on or arising out of any defense of any other Obligor or the unenforceability of the Secured Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Obligor. The Lender may, at its election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Secured Obligations, make any other accommodation with any other Obligor, or exercise any other right or remedy available to them against any other Obligor, without affecting or impairing in any reorganization way the liability of any Obligor hereunder. Each Obligor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Obligor against any other Obligor, as the case concerning may be, or any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentssecurity.
Appears in 1 contract
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agreesEach Individual Borrower waives, to the fullest extent permitted by law, not to assert or take advantage ofapplicable Legal Requirements:
(ai) Any any right to require Beneficiary Administrative Agent to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents Individual Borrower or any other person or to proceed against or exhaust any other security held by Beneficiary Administrative Agent at any time or to pursue any other remedy in BeneficiaryAdministrative Agent’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; orsuch Individual Borrower;
(ii) The release, suspension, discharge any defense or impairment rights based upon or arising out of: (A) any legal disability or other defense of any other Individual Borrower, any guarantor of Beneficiary’s rights against any Other Obligor other person or by reason of the cessation or limitation of the liability of any other Individual Borrower or any guarantor from any cause other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce than full payment of all sums payable under the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of Note and the other Loan Documents; or
(vB) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of any Other Obligor other Individual Borrower or any person or persons; or
(vii) The failure principal of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy any other Individual Borrower or any other proceedings) defect in the formation of any partner other Individual Borrower or any principal of any Other Obligor other Individual Borrower; (C) any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in any other respects more burdensome than that of a principal; (D) any failure by Administrative Agent and/or Lender to obtain collateral for the Debt or failure by Administrative Agent and/or Lender to perfect a lien on the Property (or any other person or persons.
portion thereof); (cE) Demandpresentment, demand, protest and notice of any kind, including, without limitation, the following notices:
; (dF) Notice any failure of Administrative Agent and/or Lender to give notice of sale or other disposition of the evidence, creation Property (or incurring of any new portion thereof) to any other Individual Borrower or additional Obligations to any other Person or obligation (provided any defect in any notice that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary may be given in connection with any obligation such sale or evidence disposition; (G) any failure of Obligations held by Beneficiary as collateral; or
(f) Notice of payment Administrative Agent and/or Lender to comply with applicable Legal Requirements in connection with the sale or non payment by any Other Obligor other disposition of the Obligations secured by this Deed Property (or any portion thereof), including any failure of Trust.
Administrative Agent and/or Lender to conduct a commercially reasonable sale or other disposition of the Property (gor any portion thereof); (H) Any right to assert against Beneficiary any defense arising by reason use of cash collateral under Section 363 of the Federal Bankruptcy Code, and any claim or defense based upon any election by Administrative Agent and/or Lender, in any bankruptcy proceeding, of the application or non-application of Section 1111(6)(2) of the Bankruptcy Code or any successor statute; (I) any agreement or stipulation entered into by Administrative Agent and/or Lender with respect to the provision of adequate protection in any bankruptcy proceeding; (J) any borrowing or any grant of a security interest under Section 364 of the Federal Bankruptcy Code; (K) the avoidance of any security interest in favor of Administrative Agent and/or Lender for any reason; (L) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding, including any discharge of, or bar or stay against collecting, all or any of the obligations evidenced by the Note or owing under any of the Loan Documents; (M) such Individual Borrower’s, or any other party’s, resignation of the portion of any obligation secured by the Security Instrument to be satisfied by any payment from any other Individual Borrower or any such party; or (N) an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, Administrative Agent LOAN AGREEMENT – Page 105 and/or Lender even though the election of remedies, such as nonjudicial non-judicial foreclosure with respect to this Deed of Trustsecurity for the Loan or any other amounts owing under the Loan Documents, will destroy Grantorhas destroyed such Individual Borrower’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary any other Individual Borrower; and
(iiii) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trustexcept as may be expressly and specifically permitted herein, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of claim or other right which such deficiency in a judicial foreclosure Individual Borrower might now have or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) hereafter acquire against any other guarantor Individual Borrower or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe person that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises arises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any existence or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy obligations under the Loan Documents, to pursue any other remedy Note or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents, including any of the following: (A) any right of subrogation, reimbursement, exoneration, contribution, or indemnification; or (B) any right to participate in any claim or remedy of Administrative Agent and/or Lender against any other Individual Borrower or any collateral security therefor, whether or not such claim, remedy or right arises in equity or under contract, statute or common law. LOAN AGREEMENT – Page 106 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. 2325 STEMMONS TRS, INC., a Delaware corporation By: /s/Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. 2325 STEMMONS HOTEL PARTNERS, LLC, a Delaware limited liability company By: /s/ Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. HCRE ADDISON, LLC, a Delaware limited liability company By: /s/ Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. HCRE ADDISON TRS, LLC, a Delaware limited liability company By: /s/ Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. HCRE PLANO, LLC, a Delaware limited liability company By: /s/ Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. HCRE PLANO TRS, LLC, a Delaware limited liability company By: /s/ Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. HCRE LAS COLINAS, LLC, a Delaware limited liability company By:/s/ Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. HCRE LAS COLINAS TRS, LLC, a Delaware limited liability company By: /s/ Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. NHT SP, LLC, a Delaware limited liability company By: /s/ Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written. NHT SP TRS, LLC, a Delaware limited liability company By: /s/ Xxxx XxXxxxxx Name: Xxxx XxXxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page ACORE CAPITAL MORTGAGE, LP, a Delaware limited partnership, in its capacity as administrative agent for and on behalf of the Lenders By: ACORE Capital Mortgage GP, LLC, a Delaware limited liability company, its general partner By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Authorized Signatory DELPHI CRE FUNDING LLC, a Delaware limited liability company By ACORE Capital Mortgage, LP, a Delaware limited partnership, its authorized agent By: ACORE Capital Mortgage GP, LLC, a Delaware limited liability company, its general partner By: /s/ Xxxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx Title: Authorized Signatory LOAN AGREEMENT - Signature Page
Appears in 1 contract
Samples: Loan Agreement (Nexpoint Diversified Real Estate Trust)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with each Loan Party. To the intent fullest extent permitted by Applicable Law, the obligations of subjecting its interests in each Loan Party hereunder shall not be affected by (i) the Trust Premises failure of any Credit Party to assert any claim or demand or to enforce or exercise any right or remedy against any other Loan Party under the lien provisions of this Deed Agreement, any other Loan Document or under Applicable Law, (ii) any rescission, waiver, amendment or modification of, or any release of Trust as any Loan Party from, any of the terms or provisions of, this Agreement, any other Loan Document, or (iii) the failure to perfect any security for interest in, or the release of, any of the Collateral or other security held by or on behalf of the Collateral Agent or any other Credit Party.
(b) To the fullest extent permitted by Applicable Law, the obligations of each Loan Party to pay the Obligations which include Obligations of parties in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than Grantor (each an “Other Obligor”the payment in full in cash of the Obligations after the termination of all Commitments to any Loan Party under any Loan Document), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Grantor hereby agreesWithout limiting the generality of the foregoing, to the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any other Credit Party to assert any claim or take advantage of:
(a) Any right demand or to require Beneficiary to proceed against enforce any Other Obligorremedy under this Agreement, as maker any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Notes Obligations, or other Loan Documents or by any other person act or omission that may or might in any manner or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment extent vary the risk of any of Beneficiary’s rights against any Other Obligor Loan Party or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden payment in full in cash of all the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension after termination of the time for the payment or performance of all Commitments to any Other Obligor’s obligations Loan Party under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsDocument).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kinddefense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, includingor the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash of all the Obligations after the termination of all Commitments to any Loan Party under any Loan Document. To the fullest extent permitted by Applicable Law, the Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without limitationaffecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and performed in full after the termination of Commitments to any Loan Party under any Loan Document. Pursuant to, and to the following notices:fullest extent permitted by, Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or any security.
(d) Notice Except as otherwise specifically provided herein, each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior payment in full in cash of all the Obligations (other than contingent indemnity obligations for then unasserted claims) and the termination of all Commitments to any Loan Party under any Loan Document. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the evidenceCredit Parties and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Obligations, creation whether matured or incurring unmatured, in accordance with the terms of this Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Loan Party shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Revolving Credit Loans made to another Loan Party hereunder (an “Accommodation Payment”), then the Loan Party making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Loan Parties in an amount equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Loan Party’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Loan Parties. As of any new date of determination, the “Allocable Amount” of each Loan Party shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Loan Party hereunder without (a) rendering such Loan Party “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or additional Obligations Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Loan Party with unreasonably small capital or obligation assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (provided that c) leaving such Obligations Loan Party unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or obligation is not secured by this Deed Section 4 of Trust); orthe UFTA, or Section 5 of the UFCA.
(e) Notice Without limiting the generality of the foregoing, or of any action other waiver or non action on other provision set forth in this Agreement, to the part fullest extent permitted by Applicable Law, each Loan Party waives all rights and defenses arising out of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by BeneficiaryCredit Party, even though the that election of remedies, such as a nonjudicial foreclosure with respect to this Deed of Trustsecurity for a guaranteed obligation, will destroy Grantorhas destroyed such Credit Party’s rights of subrogation and reimbursement against Other Obligors such Loan Party. Each Loan Party waives all rights and defenses that such Loan Party may have because the Obligations are secured by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary Real Estate which means, among other things: (i) waives a deficiency judgment in Credit Party may collect from any Loan Party without first foreclosing on any Real Estate or personal property Collateral pledged by a judicial foreclosure, or Loan Party; (ii) exercises if any Credit Party forecloses on any Real Estate pledged by any Loan Party, the power amount of the Obligations may be reduced only by the price for which that Real Estate is sold at the foreclosure sale, even if the Real Estate is worth more than the sale under this Deed of Trustprice; and (iii) the Credit Parties may collect Obligations from a Loan Party even if a Credit Party, by foreclosing on any action by Grantor against such Real Estate, has destroyed any Other Obligor right any Loan Party may have to obtain reimbursement collect from the other Loan Parties. This is an unconditional and irrevocable waiver of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under rights and defenses any Loan Party may have because the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note Obligations are secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against BeneficiaryReal Estate.
(hf) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured Each Loan Party hereby (i) against any Other Obligor, by way of subrogation agrees to keep each other Loan Party fully apprised at all times as to the rights status of Beneficiary or otherwiseits business, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebyaffairs, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security thereforfinances, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiaryfinancial condition, and Grantor has relied solely on said independent inquiries and investigations preparatory its ability to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy perform its Obligations under the Loan Documents, and in particular as to pursue any other remedy or adverse developments with respect thereto. Each Loan Party hereby agrees to enforce any other right. Notwithstanding any modification, discharge or extension undertake to keep itself apprised at all times as to the status of the Obligations or any amendmentbusiness, modificationaffairs, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporaryfinances, and whether assented financial condition of each other Loan Party, and of the ability of each other Loan Party to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations Obligations under the Loan Documents, and in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed particular as to any and all risks of a bankruptcy or reorganization case or proceeding adverse developments with respect to Other Obligorsany thereof. Without Each Loan Party hereby agrees, in any way limiting the generality light of the foregoingforegoing mutual covenants to inform each other, and to keep themselves and each other informed as to such matters, that the Credit Parties shall have no duty to inform any subsequent modification Loan Party of any information pertaining to the Obligations in business, affairs, finances, or financial condition of any reorganization case concerning other Loan Party, or pertaining to the ability of any Other Obligor shall not affect the obligation of Grantor other Loan Party to perform its obligations hereunder Obligations under the Loan Documents, even if such information is adverse, and under even if such information might influence the decision of one or more of the Loan Parties to continue to be jointly and severally liable for, or to provide Collateral for, the Obligations of one or more of the other Loan DocumentsParties. To the fullest extent permitted by applicable law, each Loan Party hereby expressly waives any duty of the Credit Parties to inform any Loan Party of any such information.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Guaranteed Obligations are the joint and delivered this Deed several obligation of Trust with each Guarantor. To the intent fullest extent permitted by Applicable Law, the obligations of subjecting its interests in each Guarantor hereunder shall not be affected by (i) the Trust Premises failure of any Credit Party to assert any claim or demand or to enforce or exercise any right or remedy against any other Guarantor under the lien provisions of this Deed Guaranty, any other Loan Document or under Applicable Law, (ii) any rescission, waiver, amendment or modification of, or any release of Trust as any Guarantor from, any of the terms or provisions of, this Guaranty or any other Loan Document, or (iii) the failure to perfect any security interest in, or the release of, any of the Collateral or other security held by or on behalf of the Administrative Agent or any other Credit Party.
(b) To the fullest extent permitted by Applicable Law, the obligations of each Guarantor to pay the Guaranteed Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for the Obligations which include Obligations of parties any reason (other than Grantor (each an “Other Obligor”the payment in full in cash of the Guaranteed Obligations and the termination of all Commitments under any Loan Document), including any claim of waiver, release, surrender, alteration or compromise of any of the Guaranteed Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Guaranteed Obligations or otherwise. Grantor hereby agreesWithout limiting the generality of the foregoing, to the fullest extent permitted by lawApplicable Law, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any other Credit Party to assert any claim or take advantage of:
(a) Any right demand or to require Beneficiary to proceed against enforce any Other Obligorremedy under this Guaranty, as maker any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Notes Guaranteed Obligations, or other Loan Documents or by any other person act or omission that may or might in any manner or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment extent vary the risk of any of Beneficiary’s rights against any Other Obligor Guarantor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden otherwise operate as a discharge of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
any Guarantor as a matter of law or equity (iv) Any extension of the time for other than the payment or performance in full in cash of any Other Obligor’s obligations all the Guaranteed Obligations and the termination of all Commitments under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsDocument).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Guarantor waives any defense based on or arising out of any kinddefense of any other Guarantor or the unenforceability of the Guaranteed Obligations or any part thereof from any cause, includingor the cessation from any cause of the liability of any other Guarantor, other than the payment in full in cash of all the Guaranteed Obligations and the termination of all Commitments under any Loan Document. To the fullest extent permitted by Applicable Law, the Administrative Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with any other Guarantor, or exercise any other right or remedy available to them against any other Guarantor, without limitationaffecting or impairing in any way the liability of any Guarantor hereunder except to the extent that all the Guaranteed Obligations have been indefeasibly paid in full in cash and performed in full after the termination of Commitments to any Guarantor under any Loan Document. Pursuant to, and to the following notices:fullest extent permitted by, Applicable Law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against any other Guarantor, as the case may be, or any security. To the fullest extent permitted by Applicable Law, each Guarantor waives any and all suretyship defenses.
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non Upon payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason Guarantor of any claim or defense based upon an election of remedies by Beneficiary to forecloseGuaranteed Obligations, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other all rights of Grantor to proceed such Guarantor against any other person Guarantor arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or security. Grantor waives otherwise shall in all rights respects be subordinate and defenses junior in right of payment to enforcement the prior payment in full in cash of all or the Guaranteed Obligations (other than contingent indemnity obligations for then unasserted claims) and the termination of all Commitments to any part Guarantor under any Loan Document. If any amount shall erroneously be paid to any Guarantor on account of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosuresuch subrogation, contribution, reimbursement, indemnity or similar right or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement such indebtedness of any Guarantor, such amount paid by Grantor hereunder will shall be barred by reason of (x) Beneficiary’s waiver of such deficiency held in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under trust for the provisions of Section 580(d) benefit of the California Code of Civil Procedure which provides that no judgment Credit Parties and shall forthwith be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which paid to the real property has been sold by Administrative Agent to be credited against the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Guaranteed Obligations, without the necessity of proceeding against any guarantorwhether matured or unmatured, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands Guaranty and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents. Subject to the foregoing, to the extent that any Guarantor shall, under this Guaranty as a joint and several obligor, repay any of the Guaranteed Obligations constituting Loans made to another Guarantor hereunder (an “Accommodation Payment”), then the Guarantor making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each other Guarantor in an amount equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Guarantor’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Loan Parties. As of any date of determination, the “Allocable Amount” of each Guarantor shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Guarantor hereunder without (i) rendering such Guarantor “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (ii) leaving such Guarantor with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (iii) leaving such Guarantor unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(e) Each Guarantor hereby agrees that the Credit Parties shall have no duty to inform any Guarantor of any information pertaining to the business, affairs, finances, or financial condition of any other Guarantor, or pertaining to the ability of any other Guarantor to perform its Guaranteed Obligations under the Loan Documents, even if such information is adverse, and even if such information might influence the decision of another Guarantor to continue to be jointly and severally liable for, or to provide Collateral for, the Guaranteed Obligations of any other Guarantor. To the fullest extent permitted by applicable law, each Guarantor hereby expressly waives any duty of the Credit Parties to inform any Guarantor of any such information.
Appears in 1 contract
Samples: Guaranty Agreement (Radioshack Corp)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person or to proceed against or exhaust any other security held be affected by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s the failure to proceed against any Other Obligor’s propertyof the Administrative Agent, the Collateral Agent, the Issuing Bank or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right Lender to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to enforce or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy against any other Loan Party under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release of any Loan Party from, any of the terms or provisions of, this Agreement, any other Loan Document, (iii) the failure to perfect any security interest in, or the release of, any of the Collateral or other security held by or on behalf of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender or (iv) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any other Loan Party or its assets or any resulting release or discharge of any obligation of any other Loan Party under any Loan Documents..
(b) The obligations of each Loan Party to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the payment in full in cash of the Obligations and termination of the Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations and shall not be subject to pursue any other remedy defense or to enforce setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent, the Collateral Agent, the Issuing Bank or any subsequent Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the payment in full in cash of all the Obligations and termination of the Commitments).
(c) To the fullest extent permitted by Applicable Law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash of all the Obligations and termination of the Commitments. The Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any reorganization way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and performed in full and the Commitments terminated. Pursuant to Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case concerning may be, or any Other Obligor shall not affect security.
(d) Each Loan Party hereby agrees to keep each other Loan Party fully apprised at all times as to the obligation status of Grantor its business, affairs, finances, and financial condition, and its ability to perform its obligations hereunder Obligations under the Loan Documents and in particular as to any adverse developments with respect thereto. Each Loan Party hereby agrees to undertake to keep itself apprised at all times as to the status of the business, affairs, finances, and financial condition of each other Loan Party, and of the ability of each other Loan Party to perform its Obligations under the Loan Documents, and in particular as to any adverse developments with respect to any thereof. Each Loan Party hereby agrees, in light of the foregoing mutual covenants to inform each other, and to keep themselves and each other informed as to such matters, that the none of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender shall have any duty to inform any Loan Party of any information pertaining to the business, affairs, finances, or financial condition of any other Loan Party, or pertaining to the ability of any other Loan Party to perform its Obligations under the Loan Documents, even if such information is adverse, and even if such information might influence the decision of one or more of the Loan Parties to continue to be jointly and severally liable for, or to provide Collateral for, Obligations of one or more of the other Loan DocumentsParties. To the fullest extent permitted by Applicable Law, each Loan Party hereby expressly waives any duty of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender to inform any Loan Party of any such information.
Appears in 1 contract
Samples: Superpriority Debtor in Possession Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Additional Waivers. Grantor has executed Without limiting the foregoing, Guarantor hereby waives and delivered this Deed relinquishes all rights and remedies now or thereafter accorded by applicable law to sureties and/or guarantors or any other accommodation parties, under the any statutory provision, common law or any other provision of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, custom or practice, and agrees not to assert or take advantage of:
of any such rights or remedies, including, without limitation, (a) Any any right to require Beneficiary Buyers to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary at any time Sellers or to pursue any other remedy in Beneficiary’s Buyers’ power before exercising any right or remedy under this Deed of Trust.
proceeding against Guarantor; (b) Any any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of seller, or any defect in the formation of Sellers; (c) any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Noteincapacity, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority authority, insolvency, bankruptcy, death or disability of any Other Obligor Sellers or any person or persons; or
(vii) The the failure of Beneficiary Buyers to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedingsproceeding) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
Sellers; (d) Notice notice of the evidenceexistence, creation or incurring incurrence of any new or additional Obligations indebtedness or obligation (provided that such Obligations of Sellers under the MTAs or obligation is not secured by this Deed of Trust); or
(e) Notice PSAs or of any action or non non-action on the part of any Other Obligor the Sellers under the MTAs or Beneficiary PSAs or in connection with any obligation or evidence of Obligations held by Beneficiary as collateralGuaranteed Obligation; or
(fe) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, Buyers which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s otherwise impairs any subrogation rights, rights of Guarantor or any right of Guarantor to proceed against any Other Obligor Sellers for reimbursement; or both; (f) any defense arising because of Buyers’ election, in any proceeding instituted under the federal bankruptcy code or any other rights of Grantor to proceed against state debtor relief laws; (g) any other person defense based upon the validity or security. Grantor waives all rights and defenses to enforcement of all or any part enforceability of the Obligations secured hereby MTAs or PSAs; (h) any defense or rights arising under any appraisal, valuation, stay, extension, marshaling of assets, redemption or similar law or requirement, which defenses are based on an election may delay, prevent or otherwise affect the performance by Guarantor of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d any of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary Guaranteed Obligations; (i) waives a deficiency judgment in a judicial foreclosurediligence, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor presentment and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
demand; and (j) Any duty any defense based on the part any borrowing or grant of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in a security interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed under Section 364 of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured herebyfederal bankruptcy code.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Samples: Guarantee of Indemnification Obligations (Assisted 4 Living, Inc.)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of any Agent or any Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Credit Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Credit Document, or any other agreement, including with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Agent or any other Lender.
(b) Any defense that may arise by The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the indefeasible payment in full in cash of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of the Agent or any subsequent other Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Credit Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations).
(c) To the fullest extent permitted by applicable law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations. The Agent and the other Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any reorganization way the liability of any Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Obligations. None of the Borrowers will demand, sue for, or xxxerwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Lenders and under shall forthwith be paid to the other Loan Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Credit Documents.
Appears in 1 contract
Samples: Credit Agreement (Wickes Inc)
Additional Waivers. Grantor has executed (a) The Obligations are joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of Borrower hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker the failure of any of the Notes or other Loan Documents Agent or any other person Lender or Secured Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Collateral Agent or any other Secured Party.
(b) Any defense that may arise by The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the payment in full in cash of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any subsequent Agent or any other Lender or Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the payment in full in cash of all the Obligations).
(c) To the fullest extent permitted by Applicable Law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any reorganization way the liability of any Borrower hereunder except to the extent that all the Obligations have been paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior payment in full in cash of Grantor all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations the prior payment in full of the Obligations. Until the Obligations are paid in full, none of the Borrowers will demand, xxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents. Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting the Term Loans made to another Borrower hereunder or other Obligations incurred directly and under primarily by any other Borrower (an "Accommodation Payment"), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Loan DocumentsBorrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower's Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the "Allocable Amount" of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower "insolvent" within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act ("UFTA") or Section 2 of the Uniform Fraudulent Conveyance Act ("UFCA"), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
Appears in 1 contract
Samples: Term Loan Agreement (GameStop Corp.)
Additional Waivers. Grantor has executed and delivered this Deed Pledgor waives any defense arising by ------------------ reason of Trust any disability or other defense of the Company or by reason of the cessation from any cause whtsoever of the liability of the Company or by reason of any act or omission of Pledgee or others which directly or indirectly results in or aids the discharge or release of the Company or any Shareholders with the intent of subjecting its interests in the Trust Premises respect to the lien Obligations or any security in respect thereof by operation of this Deed law or otherwise. The obligations of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, Pledgor hereunder shall be enforceable without regard to the fullest extent permitted by lawvalidity, not to assert regularity or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker enforceability of any of the Notes or other Loan Documents Obligations or any other person or to proceed against or exhaust of the documents related thereto, any other guaranty of the Obligations or any collateral security held by Beneficiary at documents securing any time of the Obligations or to pursue securing any other remedy in Beneficiary’s guaranty of the Obligations. No exercise by Pledgee of, and no omission of Pledgee to exercise, any power before exercising or authority recognized herein and no impairment or suspension of any right or remedy under this Deed of Trust.
(b) Any defense Pledgee against the Company, any other guarantor, maker or endorser or any collateral security shall in any way suspend, discharge, release, exonerate or otherwise affect any of Pledgor's obligations hereunder or any collateral security furnished by Pledgor or give to Pledgor any right of recourse against Pledgee. Pledgor specifically agrees that may arise by reason of:
the failure of Pledgee: (i) Beneficiary’s failure to proceed against perfect any Other Obligor’s propertylien on or security interest in any property heretofore or hereafter given by the Company or any guarantor, maker or endorser to secure payment of the Obligations or of any guaranty of the Obligations, or to record or file any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
document relating thereto or (ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (either in either administration, bankruptcy or any other proceedingsproceeding) of the Company, any partner of any Other Obligor guarantor, maker or any other person or persons.
(c) Demandendorser, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is shall not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairswhatsoever terminate, reducesdiminish, releases, destroys exonerate or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not otherwise affect the obligation liability of Grantor to perform its obligations hereunder and under the other Loan DocumentsPledgor hereunder.
Appears in 1 contract
Samples: Shareholders Agreement (Unified Western Grocers Inc)
Additional Waivers. Grantor Guarantor hereby irrevocably waives:
(a) any defense, set-off or counterclaim that may arise by reason of the incapacity or lack of authority of Purchaser, or which results from any disability of Purchaser or the cessation or stay of enforcement from any cause related to any defenses of the liability of Purchaser;
(b) any defense, set-off or counterclaim based upon a statute or rule of law which provides that the obligations of a surety must be neither larger in amount nor in other respects more burdensome than those of the principal;
(c) any duty on the part of Sellers to disclose to Guarantor any facts that Sellers may now or hereafter know about Purchaser, including the financial condition of Purchaser or any other guarantor of any of the Guaranteed Obligations, or any change therein or any other circumstances bearing upon the risk of nonpayment or nonperformance of any of the Guaranteed Obligations;
(d) any defense, set-off or counterclaim based upon, or that may arise by reason of, the bankruptcy or insolvency of the Purchaser;
(e) any right to subrogation to any of the rights of Sellers against Purchaser or any other guarantor, reimbursement, exoneration or contribution from Sellers or any other guarantor in respect of payments made by Guarantor hereunder or any other rights that would result in Guarantor being deemed a creditor of Purchaser under the United States Bankruptcy Code, as amended, or any other law, in each case arising from the existence or performance of obligations of Purchaser under the Acquisition Agreement or any other agreement to which Purchaser is a party, notwithstanding any payment made by Guarantor hereunder or any set-off or application of funds of Guarantor by Purchaser. If any amount shall be paid to Guarantor on account of such subrogation rights at any time where all of the Guaranteed Obligations shall not have been paid in full, such amount shall be held by Guarantor in trust for Sellers, segregated from other funds of Guarantor, and shall, forthwith upon receipt by Guarantor, be turned over to Sellers in the exact form received by Guarantor (duly indorsed by Guarantor to Sellers, if required), to be applied against the Guaranteed Obligations, whether matured or unmatured, in such order as Sellers shall determine in their sole discretion. Upon payment in full of the Guaranteed Obligations, Guarantor shall be subrogated to the corresponding rights of Sellers and Sellers shall take, at Guarantor’s expense, all such steps as Guarantor may reasonably request to implement such subrogation; provided that Guarantor shall be entitled to enforce or to receive any payment arising out of or based upon such right of subrogation only to the extent it has executed paid all Guaranteed Obligations payable to Sellers;
(f) any right to require Sellers, as a condition of payment or performance by Guarantor, to pursue any other remedy in the power of Sellers whatsoever and delivered this Deed Sellers may, but shall be under no obligation to, make a similar demand on or otherwise pursue such rights and remedies as they may have against Purchaser, any other guarantor or any other Person or against any collateral security or guarantee for the Guaranteed Obligations or any right of Trust offset with respect thereto. Any failure by Sellers to make any such demand, to pursue such other rights or remedies or to collect any payments from Purchaser, any other Guarantor or any other Person or to realize upon any such collateral security or guarantee or to exercise such right of offset, or any release of Purchaser, any other guarantor or any other Person or any such collateral security or right of offset, shall not relieve Guarantor of any obligation or liability hereunder, and shall not impair or affect the rights and remedies, whether express, implied or as a matter of law, of Sellers against Guarantor;
(g) any circumstance that constitutes a legal or equitable discharge of a guarantor or surety, other than indefeasible and complete performance and payment of the Guaranteed Obligations; provided that Guarantor reserves to itself all rights, setoffs, counterclaims and other defenses to which Purchaser is or may be entitled to raise arising from or in connection with the intent Acquisition Agreement, except for defenses arising out of subjecting its interests in the Trust Premises to bankruptcy, insolvency, dissolution or liquidation of Purchaser (the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other ObligorGuarantor Defenses”). Grantor hereby agrees, ;
(h) to the fullest extent permitted by applicable law, not to assert notices, demands, presentments, diligence, protests, notices of protest, default or take advantage of:
(a) Any right to require Beneficiary to proceed against nonpayment, notices of dishonor and notices of any Other Obligoraction or inaction, as maker including acceptance of this Guaranty, notices of default under the Acquisition Agreement, notices of any creation, renewal, extension, accrual or modification of any of the Notes or other Loan Documents Guaranteed Obligations or any other person agreement related thereto and notice of proof of reliance by Sellers upon the guarantee contained in paragraph 1 or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed acceptance of Trust.
(b) Any defense that may arise by reason of:such guarantee; and
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, principles or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment provisions of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimLaw, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary statutory or otherwise, that are or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid might be in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance conflict with the terms of this Deed Guaranty and any legal or equitable discharge of TrustGuarantor’s obligations hereunder or any other circumstance whatsoever that constitutes or that may be construed to constitute such a discharge, whether in bankruptcy, or otherwise, other than indefeasible and complete performance and payment of the Guaranteed Obligations or any Guarantor Defenses. Grantor Guarantor understands and acknowledges agrees that by virtue the guarantee contained in paragraph 1, to the extent that it applies solely to the payment of this Deed money, shall be construed as a continuing, absolute and unconditional guarantee of Trustpayment without regard to the validity, it has specifically assumed regularity or enforceability of the Acquisition Agreement, any and all risks of a bankruptcy the Guaranteed Obligations or reorganization case any other collateral security therefor or proceeding guarantee or right of offset with respect thereto at any time or from time to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentstime held by Sellers.
Appears in 1 contract
Samples: Guaranty (Black Hills Corp /Sd/)
Additional Waivers. Grantor has executed (a) The Secured Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to To the fullest extent permitted by applicable law, the Secured Obligations of each Obligor shall not be affected by (i) the failure of the Lender to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Obligor under the provisions of any Loan Document or otherwise, as maker of (ii) any rescission, waiver, amendment or modification of, or any release from any of the Notes terms or other provisions of, any Loan Documents Document, or (iii) the failure to perfect any other person security interest in, or to proceed against the release of, any of the Collateral or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed on behalf of Trustthe Lender.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure The Secured Obligations of each Obligor shall not be subject to proceed against any Other Obligor’s propertyreduction, limitation, impairment or termination for any other party against whom Beneficiary might assert a claimreason, before proceeding against Grantor under this Deed including any claim of Trust; or
(ii) The waiver, release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against the Secured Obligations, and shall not be subject to any Other Obligor defense or any other party against whom Beneficiary might assert a claimsetoff, whether such releasecounterclaim, suspension, discharge recoupment or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden termination whatsoever by reason of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension invalidity, illegality or unenforceability of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Secured Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the Secured Obligations of each Obligor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Lender to assert any subsequent claim or demand or to enforce any remedy under any Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the Obligations performance of any of the Secured Obligations, or by any other act or omission that may or might in any reorganization manner or to any extent vary the risk of any Obligor or that would otherwise operate as a discharge of any Obligor as a matter of law or equity.
(c) To the fullest extent permitted by applicable law, each Obligor waives any defense based on or arising out of any defense of any other Obligor or the unenforceability of the Secured Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Obligor. The Lender may, at its election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Secured Obligations, make any other accommodation with any other Obligor, or exercise any other right or remedy available to them against any other Obligor, without affecting or impairing in any way the liability of any Obligor hereunder. Each Obligor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish 44 any right of reimbursement or subrogation or other right or remedy of such Obligor against any other Obligor, as the case concerning may be, or any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentssecurity.
Appears in 1 contract
Additional Waivers. Grantor has executed Each and delivered this Deed every guarantor, surety, endorser, and accommodation party of Trust with the intent of subjecting its interests obligations contained herein, or in the Trust Premises to Note, hereby waives each of the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, not to assert or take advantage offollowing:
(a) Any right presentment, demand and protest, and notice of dishonor, nonpayment or other default with respect to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.obligations hereunder;
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s propertyand all defenses, claims and discharges of Companies or any other party against whom Beneficiary might assert a claimobligor, before proceeding against Grantor under this Deed except the defense of Trustdischarge by payment in full; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, includingand, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, will not assert, plead or enforce against the Bank any subsequent modification defense of waiver, release, discharge in bankruptcy, statute of limitations, respondent judicata, statute of frauds, anti-deficiency statute, incapacity, minority, usury, illegality or unenforceability which may be available to the Companies or any setoff available to the Companies or any other person against Bank; and
(c) any requirement that Bank take action, realize, institute suit, or exercise or exhaust its rights or remedies against any of the Obligations Companies or against any other person or guarantor, or collateral securing and/or guaranteeing all or any part of the obligations, prior to enforcing any rights it has against said guarantor, surety, endorser or accommodation party.
(d) the invalidity of any instruments evidencing any obligation hereunder or the disability or legal incapacity of any person in whole or in part, at any reorganization case concerning time;
(e) the fact that the amount or value of any Other Obligor shall of the property constituting a part of the Collateral, may at any time have been or be incorrectly estimated;
(f) the deterioration in market or other values, waste, loss by fire, theft, loss, non- existence or substitution of any property constituting a part of the Collateral;
(g) relief from valuation and appraisement laws; and
(h) any right that a guarantor, surety, endorser or accommodation party has, or might hereafter have, to recover from any of the Companies the monies that any such guarantor, surety, endorser or accommodation party is obligated to pay to Bank hereunder. Until Bank is paid in full and until no commitment by Bank to provide Loans or financial accommodations hereunder remains, the undersigned will not affect exercise or enforce, and expressly waives, any right of contribution, reimbursement, indemnification, recourse or subrogation available to the obligation undersigned against any person liable for payment of Grantor the obligations hereunder, including, but not limited to, each of the Companies or as to perform its obligations hereunder and under the other Loan Documentsany collateral security therefor.
Appears in 1 contract
Samples: Revolving Credit Facility Agreement (Morgan Group Inc)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release of any Loan Party from, any of the Notes terms or provisions of, this Agreement, any other Loan Documents Document, or (iii) the failure to perfect any other person security interest in, or to proceed against the release of, any of the Collateral or exhaust any other security held by Beneficiary at any time or to pursue on behalf of the Administrative Agent, the Collateral Agent, or any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustCredit Party.
(b) Any The obligations of each Loan Party to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of all Commitments to any Loan Party under any Loan Document), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or setoff, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of any of the Obligations, or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure to proceed against any Other Obligor’s property, of the Administrative Agent or any other party against whom Beneficiary might Credit Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed Agreement, any other Loan Document or any other agreement, by any waiver or modification of Trust; or
(ii) The releaseany provision of any thereof, suspensionany default, discharge failure or impairment delay, willful or otherwise, in the performance of any of Beneficiary’s rights against any Other Obligor the Obligations, or by any other party against whom Beneficiary act or omission that may or might assert a claim, whether such release, suspension, discharge in any manner or impairment is explicit, tacit to any extent vary the risk of any Loan Party or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden indefeasible payment in full in cash of all the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension after termination of the time for the payment or performance of all Commitments to any Other Obligor’s obligations Loan Party under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsDocument).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice defense of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on Party or the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Loan Party, stay other than the indefeasible payment in full in cash of all the Obligations after the termination of all Commitments to any Loan Party under any Loan Document. The Administrative Agent and the other Credit Parties may, at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any bankruptcy way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and performed in full after the termination of Commitments to any Loan Party under any Loan Document. Pursuant to Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) Except as otherwise specifically provided herein, each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations and the termination of all Commitments to any Loan Party under any Loan Document. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior indefeasible payment in full of the Obligations and no Loan Party will demand, xxx for or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Administrative Agent, to be credited against the payment of the Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands Agreement and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.. Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Revolving Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any the failure of the Notes or other Loan Documents Agent or any other person Secured Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Agent or any other Secured Party.
(b) Any defense that may arise by The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the Payment in Full of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any subsequent Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the Payment in Full of the Obligations).
(c) To the fullest extent permitted by applicable law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the Payment in Full of the Obligations. The Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any reorganization way the liability of any Borrower hereunder except to the extent that all the Obligations have been Paid in Full. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior Payment in Full of Grantor to perform its obligations hereunder and under the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Loan Documents.Borrower is hereby subordinated in right of 147
Appears in 1 contract
Samples: Credit Agreement (Dillard's, Inc.)
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to a) To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Loan Party under the provisions of this Deed Agreement, any other Loan Document or otherwise or (ii) any rescission, waiver, amendment or modification of, or any release of Trustany Loan Party from, any of the terms or provisions of, this Agreement, any other Loan Document.
(b) Any The obligations of each Loan Party to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of all Commitments to any Loan Party under any Loan Document), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or setoff, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of any of the Obligations, or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party shall not be discharged or impaired or otherwise affected by the failure of any Credit Party to proceed against assert any Other Obligor’s propertyclaim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other party against whom Beneficiary might assert a claimagreement, before proceeding against Grantor under this Deed by any waiver or modification of Trust; or
(ii) The releaseany provision of any thereof, suspensionany default, discharge failure or impairment delay, willful or otherwise, in the performance of any of Beneficiary’s rights against any Other Obligor the Obligations, or by any other party against whom Beneficiary act or omission that may or might assert a claim, whether such release, suspension, discharge in any manner or impairment is explicit, tacit to any extent vary the risk of any Loan Party or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden indefeasible payment in full in cash of all the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension after termination of the time for the payment or performance of all Commitments to any Other Obligor’s obligations Loan Party under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsDocument).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kinddefense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, includingor the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations after the termination of all Commitments to any Loan Party under any Loan Document. The Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without limitationaffecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and performed in full after the termination of Commitments to any Borrower under any Loan Document. Pursuant to Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the following notices:case may be, or any security.
(d) Notice Any indebtedness of any Loan Party now or hereafter held by any other Loan Party or any Subsidiary thereof is hereby subordinated in right of payment to the prior indefeasible payment in full of the evidenceObligations, creation and no Loan Party will demand, sue fxx or incurring otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party or any such Subsidiary thereof on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any new Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Lenders, to be credited against the payment of the Obligations, whether matured or additional Obligations or obligation (provided that such Obligations or obligation is not secured by unmatured, in accordance with the terms of this Deed of Trust); orAgreement and the other Loan Documents.
(e) Notice Without limiting the generality of the foregoing, or of any action other waiver or non action on the part other provision set forth in this Agreement, each Loan Party waives all rights and defenses arising out of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to forecloseany Credit Party, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an even though that election of remedies by Beneficiary, even though the election of remedies, has destroyed such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy GrantorCredit Party’s rights of subrogation and reimbursement against Other Obligors such Loan Party by the operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for or otherwise. Each Loan Party hereby absolutely, knowingly, unconditionally, and expressly waives any deficiency upon a note secured by a Deed and all claim, defense or benefit arising directly or indirectly under any one or more of Trust upon real property in Sections 2787 to 2855 inclusive of the California Civil Code or any case in which the real property has been sold by the trustee under the power similar law of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against BeneficiaryCalifornia.
(hf) Any rights arising because Each Loan Party hereby agrees to keep each other Loan Party fully apprised at all times as to the status of Grantor’s payment or satisfaction its business, affairs, finances, and financial condition, and its ability to perform its Obligations, and in particular as to any adverse developments with respect thereto. Each Loan Party hereby agrees to undertake to keep itself apprised at all times as to the status of the Obligations secured hereby (i) against any Other Obligorbusiness, by way of subrogation to the rights of Beneficiary or otherwiseaffairs, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebyfinances, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor each other Loan Party, and of all circumstances bearing on the risk ability of non payment of each other Loan Party to perform its Obligations, and in particular as to any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that adverse developments with respect to any obligation secured thereof. Each Loan Party hereby Beneficiary mayagrees, in light of the foregoing mutual covenants to inform each other, and to keep themselves and each other informed as to such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice matters, that the Credit Parties shall have no duty to or consent of Grantor (i) release inform any party now or hereafter liable for the performance Loan Party of any such obligationinformation pertaining to the business, (ii) extend the time for the performance affairs, finances, or financial condition of any such obligationother Loan Party, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect pertaining to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor Borrower to perform its obligations hereunder Obligations, even if such information is adverse, and under even if such information might influence the decision of one or more of the Borrowers to continue to be jointly and severally liable for the Obligations of one or more of the other Borrowers. To the fullest extent permitted by Applicable Law, each Loan DocumentsParty hereby expressly waives any duty of the Credit Parties to inform any Loan Party of any such information.
Appears in 1 contract
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, not to assert or take advantage of:
(a) Any The Parent Company irrevocably waives any right (except such as shall be required by Applicable Law and cannot be waived) to require Beneficiary to proceed against any Other Obligor, as maker of the Administrative Agent or any of the Notes or other Loan Documents Secured Creditors to (i) proceed against the Borrower, any Guarantor or any other person or to Person, (ii) proceed against or exhaust any Collateral or other security held by Beneficiary at received from the Borrower, any time Subsidiary Guarantor or to any other Person, or (iii) pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment Administrative Agent or performance of any Other Obligor’s obligations under any Note, or to any of the other Loan Documents; or
(v) Any amendment Secured Creditors. The Parent Company irrevocably waives any defense based on or arising out of this Deed of Trustany defense available to the Borrower, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy Subsidiary Guarantor or any other proceedings) Person, other than payment in full of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kindthe Guaranteed Obligations, including, without limitation, the following notices:
(d) Notice any defense based on or arising out of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor disability of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary Borrower, any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, other guarantor or any other rights of Grantor to proceed against any other person Person, or security. Grantor waives all rights and defenses to enforcement based on the unenforceability of all or any part of the Guaranteed Obligations secured hereby which defenses are based from any cause, or the cessation from any cause of the liabilities of the Borrower or of any other Credit Party, other than payment in full of all the Guaranteed Obligations. The Administrative Agent and the other Secured Creditors may, at their election, foreclose on an any Collateral or other security held by the Administrative Agent, the Collateral Agent or any of the other Secured Creditors by one or more judicial or nonjudicial Sales, whether or not any aspect of any such Sale is commercially reasonable, or exercise any other right or remedy that the Administrative Agent or any of the other Secured Creditors may have against the Borrower, any other Credit Party or any other Person, or against any Collateral or other security, without affecting or impairing in any way the liability of the Parent Company hereunder, EXCEPT to the extent that the Guaranteed Obligations have been paid in full in cash. The Parent Company irrevocably waives any defense arising out of any such election by the Administrative Agent or by any of remedies by Beneficiarythe other Secured Creditors, even though the such election operates to impair or extinguish any right of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of reimbursement or subrogation and reimbursement against Other Obligors by operation of Section 580d or other right or remedy of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosureParent Company against the Borrower, any other Credit Party or any other Person, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure Collateral or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiaryother security.
(hb) Any rights arising because The Parent Company irrevocably waives all presentments, demands for performance, protests and notices, including, without limitation, notices of Grantor’s payment or satisfaction nonperformance, notices of protest, notices of dishonor, notices of acceptance of its Guaranty, and notices of the Obligations secured hereby (i) against existence, creation or incurrence of any Other Obligor, by way of subrogation to the rights of Beneficiary new or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible additional Guaranteed Obligations. The Parent Company assumes all responsibility for being and keeping itself informed of the financial condition and Property of Other Obligors or any successor in interest the Borrower and of any Other Obligor each of the other Credit Parties, and of all other circumstances bearing on upon the risk of non payment nonpayment of any of the Guaranteed Obligations and the nature, scope and extent of the risks which the Parent Company assumes and incurs hereunder, and agrees that the Administrative Agent and the other Secured Creditors shall have no duty to advise the Parent Company of any Other Obligor information known to Beneficiary that is secured herebythem regarding any of such circumstances or risks.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with each Loan Party. To the intent fullest extent permitted by Applicable Law, the obligations of subjecting its interests in each Loan Party hereunder shall not be affected by (i) the Trust Premises failure of any Credit Party to assert any claim or demand or to enforce or exercise any right or remedy against any other Loan Party under the lien provisions of this Deed Agreement, any other Loan Document or under Applicable Law, (ii) any rescission, waiver, amendment or modification of, or any release of Trust as any Loan Party from, any of the terms or provisions of, this Agreement, any other Loan Document, or (iii) the failure to perfect any security for interest in, or the release of, any of the Collateral or other security held by or on behalf of the Collateral Agent or any other Credit Party.
(b) To the fullest extent permitted by Applicable Law, the obligations of each Loan Party to pay the Obligations which include Obligations of parties in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than Grantor (each an “Other Obligor”the payment in full in cash of the Obligations after the termination of all Commitments to any Loan Party under any Loan Document), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Grantor hereby agreesWithout limiting the generality of the foregoing, to the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any other Credit Party to assert any claim or take advantage of:
(a) Any right demand or to require Beneficiary to proceed against enforce any Other Obligorremedy under this Agreement, as maker any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Notes Obligations, or other Loan Documents or by any other person act or omission that may or might in any manner or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment extent vary the risk of any of Beneficiary’s rights against any Other Obligor Loan Party or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden payment in full in cash of all the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension after termination of the time for the payment or performance of all Commitments to any Other Obligor’s obligations Loan Party under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsDocument).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kinddefense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, includingor the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash of all the Obligations after the termination of all Commitments to any Loan Party under any Loan Document. To the fullest extent permitted by Applicable Law, the Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without limitationaffecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been paid in full in cash and performed in full after the termination of Commitments to any Loan Party under any Loan Document. Pursuant to, and to the following notices:fullest extent permitted by, Applicable Law, each Loan Party waives any defense arising out of any such election even though such election
(d) Notice Except as otherwise specifically provided herein, each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior payment in full in cash of all the Obligations (other than contingent indemnity obligations for then unasserted claims) and the termination of all Commitments to any Loan Party under any Loan Document. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the evidenceCredit Parties and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Obligations, creation whether matured or incurring unmatured, in accordance with the terms of this Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Loan Party shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to another Loan Party hereunder (an “Accommodation Payment”), then the Loan Party making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Loan Parties in an amount equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Loan Party’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Loan Parties. As of any new date of determination, the “Allocable Amount” of each Loan Party shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Loan Party hereunder without (a) rendering such Loan Party “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or additional Obligations Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Loan Party with unreasonably small capital or obligation assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (provided that c) leaving such Obligations Loan Party unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or obligation is not secured by this Deed Section 4 of Trust); orthe UFTA, or Section 5 of the UFCA.
(e) Notice Without limiting the generality of the foregoing, or of any action other waiver or non action on other provision set forth in this Agreement, to the part fullest extent permitted by Applicable Law, each Loan Party waives all rights and defenses arising out of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by BeneficiaryCredit Party, even though the that election of remedies, such as a nonjudicial foreclosure with respect to this Deed of Trustsecurity for a guaranteed obligation, will destroy Grantorhas destroyed such Credit Party’s rights of subrogation and reimbursement against Other Obligors such Loan Party. Each Loan Party waives all rights and defenses that such Loan Party may have because the Obligations are secured by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary Real Estate which means, among other things: (i) waives a deficiency judgment in Credit Party may collect from any Loan Party without first foreclosing on any Real Estate or personal property Collateral pledged by a judicial foreclosure, or Loan Party; (ii) exercises if any Credit Party forecloses on any Real Estate pledged by any Loan Party, the power amount of the Obligations may be reduced only by the price for which that Real Estate is sold at the foreclosure sale, even if the Real Estate is worth more than the sale under this Deed of Trustprice; and (iii) the Credit Parties may collect Obligations from a Loan Party even if a Credit Party, by foreclosing on any action by Grantor against such Real Estate, has destroyed any Other Obligor right any Loan Party may have to obtain reimbursement collect from the other Loan Parties. This is an unconditional and irrevocable waiver of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under rights and defenses any Loan Party may have because the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note Obligations are secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against BeneficiaryReal Estate.
(hf) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured Each Loan Party hereby (i) against any Other Obligor, by way of subrogation agrees to keep each other Loan Party fully apprised at all times as to the rights status of Beneficiary or otherwiseits business, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebyaffairs, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security thereforfinances, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiaryfinancial condition, and Grantor has relied solely on said independent inquiries and investigations preparatory its ability to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy perform its Obligations under the Loan Documents, and in particular as to pursue any other remedy or adverse developments with respect thereto. Each Loan Party hereby agrees to enforce any other right. Notwithstanding any modification, discharge or extension undertake to keep itself apprised at all times as to the status of the Obligations or any amendmentbusiness, modificationaffairs, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporaryfinances, and whether assented to by Beneficiaryfinancial condition of each other Loan Party, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification ability of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.each
Appears in 1 contract
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to a) To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release of any Loan Party from, any of the Notes terms or provisions of, this Agreement, any other Loan Documents Document, or (iii) the failure to perfect any other person security interest in, or to proceed against the release of, any of the Collateral or exhaust any other security held by Beneficiary at any time or to pursue on behalf of the Administrative Agent, the Collateral Agent or any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustCredit Party.
(b) Any The obligations of each Loan Party, whether set forth hereunder or pursuant to any Guaranty, to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of all Commitments to any Loan Party under any Loan Document), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or setoff, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of any of the Obligations, or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party shall not be discharged or impaired or otherwise affected by the failure to proceed against any Other Obligor’s property, of the Administrative Agent or any other party against whom Beneficiary might Credit Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed Agreement, any other Loan Document or any other agreement, by any waiver or modification of Trust; or
(ii) The releaseany provision of any thereof, suspensionany default, discharge failure or impairment delay, willful or otherwise, in the performance of any of Beneficiary’s rights against any Other Obligor the Obligations, or by any other party against whom Beneficiary act or omission that may or might assert a claim, whether such release, suspension, discharge in any manner or impairment is explicit, tacit to any extent vary the risk of any Loan Party or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden indefeasible payment in full in cash of all the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension after termination of the time for the payment or performance of all Commitments to any Other Obligor’s obligations Loan Party under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsDocument).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kinddefense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, includingor the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations after the termination of all Commitments to any Loan Party under any Loan Document. The Administrative Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without limitationaffecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and performed in full after the termination of Commitments to any Loan Party under any Loan Document. Pursuant to Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the following notices:case may be, or any security.
(d) Notice Any indebtedness of any Loan Party now or hereafter held by any other Loan Party or any Subsidiary thereof is hereby subordinated in right of payment to the prior indefeasible payment in full of the evidenceObligations and no Loan Party will demand, creation xxx for or incurring otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party or any such Subsidiary on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any new Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Administrative Agent, to be credited against the payment of the Obligations, whether matured or additional Obligations or obligation (provided that such Obligations or obligation is not secured by unmatured, in accordance with the terms of this Deed of Trust); orAgreement and the other Loan Documents.
(e) Notice Without limiting the generality of the foregoing, or of any action other waiver or non action on the part other provision set forth in this Agreement, each Loan Party waives all rights and defenses arising out of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by BeneficiaryCredit Party, even though the that election of remedies, such as a nonjudicial foreclosure with respect to this Deed of Trustsecurity for a guaranteed obligation, will destroy Grantorhas destroyed such Credit Party’s rights of subrogation and reimbursement against Other Obligors such Loan Party by the operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides or otherwise. Each Loan Party waives all rights and defenses that no judgment shall be rendered for any deficiency upon a note such Loan Party may have because the Obligations are secured by Real Estate which means, among other things: (i) a Deed Credit Party may collect from any Loan Party without first foreclosing on any Real Estate or personal property Collateral pledged by a Loan Party; (ii) if any Credit Party forecloses on any Real Estate pledged by any Loan Party, the amount of Trust upon real property in any case in which the real property has been sold Obligations may be reduced only by the trustee price for which that Real Estate is sold at the foreclosure sale, even if the Real Estate is worth more than the sale price; and (iii) the Credit Parties may collect Obligations from a Loan Party even if a Credit Party, by foreclosing on any such Real Estate, has destroyed any right any Loan Party may have to collect from the other Loan Parties. This is an unconditional and irrevocable waiver of any rights and defenses any Loan Party may have because the Obligations are secured by Real Estate. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d or 726 of the California Code of Civil Procedure. Each Loan Party hereby absolutely, knowingly, unconditionally, and expressly waives any and all claim, defense or benefit arising directly or indirectly under any one or more of Sections 2787 to 2855 inclusive of the power California Civil Code or any similar law of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against BeneficiaryCalifornia.
(hf) Any rights arising because Each Loan Party hereby agrees to keep each other Loan Party fully apprised at all times as to the status of Grantor’s payment or satisfaction its business, affairs, finances, and financial condition, and its ability to perform its Obligations, and in particular as to any adverse developments with respect thereto. Each Loan Party hereby agrees to undertake to keep itself apprised at all times as to the status of the Obligations secured hereby (i) against any Other Obligorbusiness, by way of subrogation to the rights of Beneficiary or otherwiseaffairs, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebyfinances, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor each other Loan Party, and of all circumstances bearing on the risk ability of non payment of each other Loan Party to perform its Obligations, and in particular as to any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that adverse developments with respect to any obligation secured thereof. Each Loan Party hereby Beneficiary mayagrees, in light of the foregoing mutual covenants to inform each other, and to keep themselves and each other informed as to such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice matters, that the Credit Parties shall have no duty to or consent of Grantor (i) release inform any party now or hereafter liable for the performance Loan Party of any such obligationinformation pertaining to the business, (ii) extend the time for the performance affairs, finances, or financial condition of any such obligationother Loan Party, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect pertaining to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor Loan Party to perform its obligations hereunder Obligations, even if such information is adverse, and under even if such information might influence the decision of one or more of the Loan Parties to continue to be jointly and severally liable for, or to provide Collateral for, Obligations of one or more of the other Loan DocumentsParties. To the fullest extent permitted by applicable law, each Loan Party hereby expressly waives any duty of the Credit Parties to inform any Loan Party of any such information.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release of any Loan Party from, any of the Notes terms or provisions of, this Agreement, any other Loan Documents Document, or (iii) the failure to perfect any other person security interest in, or to proceed against the release of, any of the Collateral or exhaust any other security held by Beneficiary at or on behalf of the Administrative Agent, the Collateral Agent the Issuing Bank or any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustLender.
(b) Any defense that may arise by The obligations of each Loan Party to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the payment in full in cash of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebyand shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors invalidity, illegality or any successor in interest unenforceability of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent, the Collateral Agent, the Issuing Bank or any subsequent Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the payment in full in cash of all the Obligations).
(c) To the fullest extent permitted by applicable law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash of all the Obligations. The Administrative Agent, the Collateral Agent, the Issuing Bank and the Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any reorganization way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and performed in full. Pursuant to applicable law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case concerning may be, or any Other Obligor shall not affect security.
(d) Each Loan Party hereby agrees to keep each other Loan Party fully apprised at all times as to the obligation status of Grantor its business, affairs, finances, and financial condition, and its ability to perform its obligations hereunder Obligations under the Loan Documents and in particular as to any adverse developments with respect thereto. Each Loan Party hereby agrees to undertake to keep itself apprised at all times as to the status of the business, affairs, finances, and financial condition of each other Loan Party, and of the ability of each other Loan Party to perform its Obligations under the Loan Documents, and in particular as to any adverse developments with respect to any thereof. Each Loan Party hereby agrees, in light of the foregoing mutual covenants to inform each other, and to keep themselves and each other informed as to such matters, that the none of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender shall have any duty to inform any Loan Party of any information pertaining to the business, affairs, finances, or financial condition of any other Loan Party, or pertaining to the ability of any other Loan Party to perform its Obligations under the Loan Documents, even if such information is adverse, and even if such information might influence the decision of one or more of the Loan Parties to continue to be jointly and severally liable for, or to provide Collateral for, Obligations of one or more of the other Loan DocumentsParties. To the fullest extent permitted by applicable law, each Loan Party hereby expressly waives any duty of the Administrative Agent, the Collateral Agent, the Issuing Bank or any Lender to inform any Loan Party of any such information.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Additional Waivers. Grantor has executed Debtor hereby waives notice of each and delivered this Deed every one of Trust with the intent following acts, events and/or conditions and agrees that, without necessity for any express reservation of subjecting its interests rights against Debtor, neither the occurrence or existence of any such act, event or condition, nor Secured Party's commission of or omission to do any such act, event or condition, in any number of instances, shall in any way release, discharge, impair or diminish any of the Trust Premises to the lien of this Deed of Trust Obligations, except as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted otherwise specifically agreed by law, not to assert or take advantage ofSecured Party in writing:
(a) Any right to require Beneficiary to proceed against any Other Obligorthe amendment, as maker modification, renewal, extension or refinancing of, or the granting by Secured Party of any indulgence of the Notes or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s propertynature with respect to, or any other party against whom Beneficiary might assert a claimthe invalidity, before proceeding against Grantor under this Deed of Trust; or
(ii) The voidability, unenforceability, compromise, settlement, release, suspensionwaiver, discharge or impairment of any of Beneficiary’s rights against any Other Obligor impairment, in whole or any other party against whom Beneficiary might assert a claimin part, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any NoteCredit Agreement, or this Agreement, any of the other Loan Credit Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any obligation of any Other Obligor with respect to any of the Obligations;
(b) the addition of any maker, guarantor, surety, endorser, indemnitor or other person primarily or secondarily liable for or obligated upon any of the Obligations;
(c) assumption of any of the Obligations by any other person, whether by assignment, sale, merger, consolidation, sublease, conveyance or otherwise;
(d) delivery to Secured Party or acceptance by Secured Party of any promissory note or other instrument or writing evidencing or otherwise relating to any of the Obligations;
(e) the institution of any suit, the obtaining of any judgment or the exercise of any other right or remedy against Debtor or any Other Obligor;
(f) the sale, exchange, pledge, release, disposition, surrender, loss, destruction, damage to or impairment of, any Collateral; and
(g) the creation, perfection continuation, amendment, modification, stay invalidity, voidability, unenforceability, compromise, settlement, subordination, release, waiver, discharge, impairment or cure loss of Beneficiary’s rights which priority, in whole or in part, of, any security interest, lien, other encumbrance directly or indirectly securing any of the Obligations. Debtor also hereby waives, to the extent the same may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to be waived under applicable law:
(a) notice of acceptance by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms Secured Party of this Deed Agreement;
(b) all claims, causes of Trust. Grantor understands action and acknowledges rights of Debtor against Secured Party on account of actions taken or not taken by Secured Party in the exercise of Secured Party's rights or remedies under this Agreement or under law, provided that by virtue the same did not arise from Secured Party's negligence or willful misconduct;
(c) all claims and causes of this Deed action of TrustDebtor against Secured Party for punitive, it has specifically assumed any and exemplary, indirect, special, consequential or other non-compensatory damages;
(d) all risks rights of a bankruptcy or reorganization case or proceeding redemption of Debtor with respect to Other Obligors. Without in any way limiting the generality of the foregoingCollateral;
(e) in the event Secured Party seeks to repossess any or all of the Collateral by judicial proceedings, any subsequent modification bonds or demands for possession which otherwise may be required;
(f) all rights of Debtor to have marshalled the Collateral or any other security for any of the Obligations Obligations;
(g) diligence in the enforcement or collection of all of the Obligations;
(h) except as otherwise provided in the Credit Agreement, presentment, protest, notice of protest and notice of non-payment with respect to all of the Obligations; and
(i) any reorganization case duty or obligation of Secured Party to disclose to Debtor any information concerning any Other Obligor shall not affect other customer or client, or prospective customer or client, of Secured Party. Debtor agrees that Secured Party may exercise any or all of its rights and/or remedies under the obligation of Grantor to perform its obligations hereunder Credit Agreement, under this Agreement, under other Credit Documents and under law without resorting to, without regard to, and regardless of the adequacy of, any security or other Loan Documentssources of liability with respect to any of the Obligations. Neither any failure nor any delay on the part of Secured Party in exercising any right, power or remedy under the Credit Agreement, under this Agreement, under other Credit Documents or under law shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
Appears in 1 contract
Samples: Pledge and Security Agreement (Computer Learning Centers Inc)
Additional Waivers. Grantor has executed (a) The Obligations are joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of Borrower hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker the failure of any of the Notes or other Loan Documents Agent or any other person Secured Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other 109 Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Collateral Agent or any other Secured Party.
(b) Any defense that may arise by The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the payment in full in cash of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any subsequent Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the payment in full in cash of all the Obligations).
(c) To the fullest extent permitted by Applicable Law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any reorganization way the liability of any Borrower hereunder except to the extent that all the Obligations have been paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be 110 subordinate and junior in right of payment to the obligation prior payment in full in cash of Grantor all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Obligations. Until the Obligations are paid in full, none of the Borrowers will demand, sue for, or otherwise attempt to collect any such indebtedness. If axx amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Secured Parties and under shall forthwith be paid to the other Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (GameStop Corp.)
Additional Waivers. Grantor has executed The Guarantor hereby further expressly, knowingly, and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties voluntarily waives: (i) any defense based upon any legal disability or other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any defense of the Notes or Borrower, any other guarantor of the Loan Documents or any other person Person, or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension cessation or limitation of the time for liability of the Borrower from any cause or as a result of the full payment or performance of any Other Obligor’s obligations all sums payable under any Notethe Loan Agreement, the Notes, or any of the other Loan Documents; or
(ii) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of the Borrower or any principal of the Borrower or any defect in the formation of the Borrower or any principal of the Borrower; (iii) any defense based upon the application by the Borrower of the proceeds of the Loan for purposes other than the purposes represented by the Borrower to the Administrative Agent or intended or understood by the Administrative Agent or the Guarantor; (iv) any defense to the recovery by the Administrative Agent or any Lender against the Guarantor of any deficiency or otherwise to the enforcement of this Guaranty or any security for this Guaranty based upon the Administrative Agent’s election of any remedy against the Guarantor or the Borrower; (v) Any amendment of this Deed of Trustany defense based upon the Administrative Agent’s and/or any Lender’s failure to disclose to the Guarantor any information concerning the Borrower’s financial condition or any other circumstances bearing on the Borrower’s ability to pay all sums payable under the Loan Agreement, any Note the Notes, or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity any defense based upon any statute or lack rule of authority law which provides that the obligation of a surety must be neither larger in amount nor in any Other Obligor or any person or personsother respects more burdensome than that of a principal; or
(vii) The failure any defense based upon the Administrative Agent’s or any Lender’s election, in any proceeding instituted under the Bankruptcy Code, of Beneficiary the application of Section 1111(b)(2) of the Bankruptcy Code or any successor statute; (viii) any defense based upon any borrowing or any grant of a security interest under Section 364 of the Bankruptcy Code; (ix) any right of subrogation, any right to file enforce any remedy which the Administrative Agent or enforce a claim any Lender may have against the estate (in either administrationBorrower and any right to participate in, bankruptcy or benefit from, any security for the Loan now or hereafter held by the Administrative Agent or any other proceedingsLender; (x) of any partner of any Other Obligor or any other person or persons.
(c) Demandpresentment, protest demand, protest, and notice of any kind; and (xi) the benefit of any statute of limitations affecting the liability of the Guarantor hereunder or the [GUARANTY OF NON-RECOURSE CARVEOUTS] Voya Loan No.: 30325 enforcement hereof. The Guarantor hereby further waives any and all rights and defenses that the Guarantor may have because the Borrower’s debt is secured by real property; this means, among other things, that: (a) the Administrative Agent may collect from the Guarantor without first foreclosing on any real or personal property collateral pledged by the Borrower; and (b) if the Administrative Agent forecloses on any real property collateral pledged by the Borrower, then (1) the amount of the debt may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price, and (2) the Administrative Agent may collect from the Guarantor even if the Administrative Agent, by foreclosing on the real property collateral, has destroyed any right the Guarantor may have to collect from the Borrower. The foregoing sentence is an unconditional and irrevocable waiver of any rights and defenses the Guarantor may have because the Borrower’s debt is secured by real property. Without limiting the generality of the foregoing or any other provision hereof, the Guarantor hereby further expressly, knowingly, and voluntarily waives any and all rights and defenses, including, without limitation, the following notices:
(d) Notice any rights of the evidencesubrogation, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclosereimbursement, either by judicial foreclosure or by exercise of the power of saleindemnification, this Deed of Trustand contribution, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will might otherwise be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation available to the rights of Beneficiary or otherwiseGuarantor under applicable law. Finally, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured Guarantor hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance act or any payment which tolls any statute of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect limitations applicable to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with BeneficiaryLoan, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations Agreement or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan DocumentsDocuments shall similarly operate to toll the statute of limitations applicable to the Guarantor’s liability hereunder.
Appears in 1 contract
Samples: Guaranty of Non Recourse Carveouts (Stratus Properties Inc)
Additional Waivers. Grantor has executed (i) The Guarantor waives any and delivered this Deed all notice of Trust with the intent of subjecting its interests in the Trust Premises to the lien acceptance of this Deed Guaranty, and any and all notice of Trust as security for the Obligations which include Obligations creation, renewal, modification, extension or accrual of parties other than Grantor (each an “Other Obligor”). Grantor hereby agreesthe Guaranteed Obligations, to or the fullest extent permitted reliance by lawthe Guaranteed Parties upon this Guaranty, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker the exercise of any right, power or privilege hereunder. The Guaranteed Obligations shall conclusively be deemed to have been created, contracted, incurred and permitted to exist in reliance upon this Guaranty. The Guarantor waives promptness, diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all other notices to or upon the Notes or other Loan Documents Designated Borrowers, the Guarantor or any other person Person with respect to the Guaranteed Obligations.
(ii) Until the Guaranteed Obligations have been paid in full in cash, the Guarantor waives (A) its rights of subrogation and reimbursement, (B) any defenses the Guarantor may have to the Guaranty by reason of an election of remedies by the Guaranteed Parties, (C) any rights or defenses the Guarantor may have by reason of protection afforded to any Designated Borrower or any other Loan Party pursuant to the anti-deficiency or other laws of the State of New York limiting or discharging the Designated Borrowers’ or such other Loan Party’s indebtedness, (D) any defenses arising by reason of any disability or other defense of the Designated Borrowers or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Guaranteed Party) of the liability of any Designated Borrower, (E) any defenses based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Designated Borrowers, (F) any right to compel any Guaranteed Party to proceed against or exhaust any other security held by Beneficiary at any time for the Guaranteed Obligations (or to proceed against such security in a particular order) or to pursue any other remedy in Beneficiarysuch Guaranteed Party’s power before exercising whatsoever, and (G) any benefit of and any right to participate in any security now or remedy under this Deed of Trusthereafter held by the Guaranteed Parties.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary The Guarantor warrants and agrees that would reduce the burden each of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation waivers set forth herein is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver made with full knowledge of its significance and consequences and that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosureany such waivers are determined to be contrary to any applicable law or public policy, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment waivers shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation effective only to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, maximum extent permitted by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in fullapplicable law.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with each Loan Party. To the intent fullest extent permitted by Applicable Law, the obligations of subjecting its interests in each Loan Party hereunder shall not be affected by (i) the Trust Premises failure of any Credit Party to assert any claim or demand or to enforce or exercise any right or remedy against any other Loan Party under the lien provisions of this Deed Agreement, any other Loan Document or under Applicable Law, (ii) any rescission, waiver, amendment or modification of, or any release of Trust as any Loan Party from, any of the terms or provisions of, this Agreement, any other Loan Document, or (iii) the failure to perfect any security for interest in, or the release of, any of the Collateral or other security held by or on behalf of the Collateral Agent or any other Credit Party.
(b) To the fullest extent permitted by Applicable Law, the obligations of each Loan Party to pay the Obligations which include Obligations of parties in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than Grantor (each an “Other Obligor”the payment in full in cash of the Obligations after the termination of all Commitments to any Loan Party under any Loan Document), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Grantor hereby agreesWithout limiting the generality of the foregoing, to the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any other Credit Party to assert any claim or take advantage of:
(a) Any right demand or to require Beneficiary to proceed against enforce any Other Obligorremedy under this Agreement, as maker any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Notes Obligations, or other Loan Documents or by any other person act or omission that may or might in any manner or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment extent vary the risk of any of Beneficiary’s rights against any Other Obligor Loan Party or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden payment in full in cash of all the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension after termination of the time for the payment or performance of all Commitments to any Other Obligor’s obligations Loan Party under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsDocument).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kinddefense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, includingor the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash of all the Obligations after the termination of all Commitments to any Loan Party under any Loan Document. To the fullest extent permitted by Applicable Law, the Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without limitationaffecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been paid in full in cash and performed in full after the termination of Commitments to any Loan Party under any Loan Document. Pursuant to, and to the following notices:fullest extent permitted by, Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or any security.
(d) Notice Except as otherwise specifically provided herein, each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior payment in full in cash of all the Obligations (other than contingent indemnity obligations for then unasserted claims) and the termination of all Commitments to any Loan Party under any Loan Document. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the evidenceCredit Parties and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Obligations, creation whether matured or incurring unmatured, in accordance with the terms of this Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Loan Party shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to another Loan Party hereunder (an “Accommodation Payment”), then the Loan Party making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Loan Parties in an amount equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Loan Party’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Loan Parties. As of any new date of determination, the “Allocable Amount” of each Loan Party shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Loan Party hereunder without (a) rendering such Loan Party “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or additional Obligations Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Loan Party with unreasonably small capital or obligation assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (provided that c) leaving such Obligations Loan Party unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or obligation is not secured by this Deed Section 4 of Trust); orthe UFTA, or Section 5 of the UFCA.
(e) Notice Without limiting the generality of the foregoing, or of any action other waiver or non action on other provision set forth in this Agreement, to the part fullest extent permitted by Applicable Law, each Loan Party waives all rights and defenses arising out of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by BeneficiaryCredit Party, even though the that election of remedies, such as a nonjudicial foreclosure with respect to this Deed of Trustsecurity for a guaranteed obligation, will destroy Grantorhas destroyed such Credit Party’s rights of subrogation and reimbursement against Other Obligors such Loan Party. Each Loan Party waives all rights and defenses that such Loan Party may have because the Obligations are secured by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary Real Estate which means, among other things: (i) waives a deficiency judgment in Credit Party may collect from any Loan Party without first foreclosing on any Real Estate or personal property Collateral pledged by a judicial foreclosure, or Loan Party; (ii) exercises if any Credit Party forecloses on any Real Estate pledged by any Loan Party, the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligormay be reduced only by the price for which that Real Estate is sold at the foreclosure sale, by way of subrogation to even if the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of Real Estate is worth more than the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or sale price; and (iii) has the Credit Parties may collect Obligations from a reasonable opportunity to communicate such facts to GrantorLoan Party even if a Credit Party, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing by foreclosing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligationReal Estate, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise destroyed any right or remedy under the any Loan Documents, Party may have to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under collect from the other Loan DocumentsParties. This is an unconditional and irrevocable waiver of any rights and defenses any Loan Party may have because the Obligations are secured by Real Estate.
Appears in 1 contract
Additional Waivers. Grantor has executed and delivered this Deed of Trust with To the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by applicable law, not to assert each Pledgor waives presentment, demand, protest, notice of acceptance, notice of Secured Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or take advantage of:
(a) Any other similar law now or hereafter in effect, any right to require Beneficiary the marshaling of assets of such Pledgor, and all suretyship defenses generally. Without limiting the generality of the foregoing, each Pledgor agrees to proceed the provisions of any instrument evidencing, securing or otherwise executed in connection with any of the Secured Obligations and agrees that the Secured Obligations shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of the Secured Party to assert any claim or demand or to enforce any right or remedy against such Pledgor; (ii) any Other Obligor, as maker extensions or renewals of any of the Notes Secured Obligations; (iii) any rescissions, waivers, amendments or modifications of any of the terms or provisions of any agreement evidencing, securing or otherwise executed in connection with the Secured Obligations; (iv) the substitution or release of any Person primarily or secondarily liable for any obligation of any Pledgor; (v) the adequacy of any rights the Secured Party may have against any collateral or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed means of Trust.
obtaining repayment of the Secured Obligations; (bvi) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or the impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce collateral securing the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kindSecured Obligations, including, without limitation, the following notices:
(d) Notice of failure to perfect or preserve any rights the evidenceSecured Party might have in such collateral or the substitution, creation exchange, surrender, release, loss or incurring destruction of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
or (fvii) Notice of payment any other act or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, omission which might in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on extent vary the risk of non payment any Pledgor or otherwise operate as a release or discharge of any Obligations such Pledgor, all of any Other Obligor which may be done without notice to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions such Pledgor. Each of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby Pledgors waives the right to require Beneficiary receive any verification statements or financing statements related to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan DocumentsAgreement.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Liabilities are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of the Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Deed Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of Trustthe terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Liabilities, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Lender.
(b) Any defense that may arise by The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the indefeasible payment in full in cash of the Liabilities), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Liabilities, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise unenforceability of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary Liabilities or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of the Lender to assert any subsequent claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the Obligations performance of the Liabilities, or by any other act or omission that may or might in any reorganization manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Liabilities).
(c) To the fullest extent permitted by applicable law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Liabilities. The Lender may, at its election, foreclose on any security held by the Lender by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Liabilities, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent that all the Liabilities have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Liabilities, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Liabilities. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Liabilities. None of the Borrowers will demand, xxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Lender and under shall forthwith be paid to the other Lender to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Obligations are joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of Borrower hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker the failure of any of the Notes or other Loan Documents Agent or any other person Secured Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Collateral Agent or any other Secured Party.
(b) Any defense that may arise by The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the payment in full in cash of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any subsequent Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the payment in full in cash of all the Obligations).
(c) To the fullest extent permitted by Applicable Law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any reorganization way the liability of any Borrower hereunder except to the extent that all the Obligations have been paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior payment in full in cash of Grantor all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Obligations. Until the Obligations are paid in full, none of the Borrowers will demand, sxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Secured Parties and under shall forthwith be paid to the other Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Gamestop Corp)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker of any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the Notes terms or other Loan Documents provisions of, this Agreement or any other person Loan Document, or (iii) the failure to proceed against perfect any security interest in, or exhaust the release of, any of the Collateral or other security held by Beneficiary at any time or to pursue on behalf of the Collateral Agent or any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustCredit Party.
(b) Any The obligations of each Loan Party shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the Payment in Full of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or setoff, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure to proceed against of any Other Obligor’s property, Agent or any other party against whom Beneficiary might Credit Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed Agreement, any other Loan Document or any other agreement, by any waiver or modification of Trust; or
(ii) The releaseany provision of any thereof, suspensionany default, discharge failure or impairment delay, willful or otherwise, in the performance of any of Beneficiary’s rights against any Other Obligor the Obligations, or by any other party against whom Beneficiary act or omission that may or might assert a claim, whether such release, suspension, discharge in any manner or impairment is explicit, tacit to any extent vary the risk of any Loan Party or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden Payment in Full of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsObligations).
(c) DemandTo the fullest extent permitted by applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice defense of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on Party or the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Loan Party, stay other than the Payment in Full of all the Obligations. The Collateral Agent and the other Credit Parties may, at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any bankruptcy way the liability of any Loan Party hereunder except to the extent that all the Obligations have been Paid in Full. Each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable Law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) Each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior Payment in Full of all the Obligations. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior Payment in Full of the Obligations and no Loan Party will demand, sue for or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed Agreement and the other Loan Documents. Subject to the foregoing, to the extent that any Loan Party shall, under this Agreement as a joint and several obligor, repay any of Trustthe Obligations constituting Revolving Loans made to another Loan Party hereunder or other Obligations incurred directly and primarily by any other Loan Party (an “Accommodation Payment”), then the Loan Party making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Loan Parties in an amount, for each of such other Loan Parties, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Loan Party’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Loan Parties. Grantor understands and acknowledges that by virtue As of this Deed any date of Trustdetermination, it has specifically assumed any and all risks the “Allocable Amount” of a bankruptcy each Loan Party shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Loan Party hereunder without (a) rendering such Loan Party “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or reorganization case Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Loan Party with unreasonably small capital or proceeding with respect assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Loan Party unable to Other Obligors. pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
(e) Without in any way limiting the generality of the foregoing, or of any subsequent modification other waiver or other provision set forth in this Agreement, each Loan Party hereby absolutely, knowingly, unconditionally, and expressly waives any and all claim, defense or benefit arising directly or indirectly under any one or more of Sections 2787 to 2855 inclusive of the Obligations in California Civil Code or any reorganization case concerning any Other Obligor shall not affect the obligation similar law of Grantor to perform its obligations hereunder and under the other Loan DocumentsCalifornia.
Appears in 1 contract
Samples: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Borrower hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker the failure of any of the Notes or other Loan Documents Agent or any other person Secured Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Deed Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of Trustthe terms or provisions of, this Agreement, any other Loan Document, or any other agreement, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any other Secured Party.
(b) Any defense that may arise by The obligations of each Borrower to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than 101 the indefeasible payment in full in cash of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any subsequent Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, wilful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations).
(c) To the fullest extent permitted by Applicable Law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any reorganization way the liability of any Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Obligations. None of the Borrowers will demand, sue for, or otherwise attempt to collect any such indebtedness. If xxy amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Secured Parties and under shall forthwith be paid to the other Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
(e) Without limiting the generality of the foregoing, or of any other waiver or other provision set forth in this Agreement, each Borrower hereby absolutely, knowingly, unconditionally, and expressly waives any and all claim, defense or benefit arising directly or indirectly under any one or more of Sections 2787 to 2855 inclusive of the California Civil Code or any similar law of California.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Liabilities are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of the Administrative Agent or any Revolving Credit Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Liabilities under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Administrative Agent.
(b) Any defense that may arise by The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the indefeasible payment in full in cash of the Liabilities), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Liabilities, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise unenforceability of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary Liabilities or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent or any subsequent Revolving Credit Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, wilful or otherwise, in the Obligations performance of the Liabilities, or by any other act or omission that may or might in any reorganization manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Liabilities).
(c) To the fullest extent permitted by applicable law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Liabilities. The Administrative Agent may, at its election, foreclose on any security held by it by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Liabilities, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any way the liability of any Borrower hereunder except to the extent that all the Liabilities have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Liabilities, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Liabilities. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Liabilities. None of the Borrowers will demand, sue for, or otherwise attempt to collect any such indebtedness. If anx xmount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Administrative Agent and under the other Revolving Credit Lenders and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Borrower hereunder shall not be affected by (i) the failure of any Agent or any Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s propertyother Borrower under the provisions of this Agreement, any other Credit Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Credit Document, or any other party against whom Beneficiary might assert a claimagreement, before proceeding against Grantor including with respect to any other Borrower of the Obligations under this Deed of Trust; or
Agreement, or (iiiii) The releasethe failure to perfect any security interest in, suspensionor the release of, discharge or impairment of any of Beneficiary’s rights against any Other Obligor the security held by or on behalf of the Agent or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsLender.
(c) DemandTo the fullest extent permitted by applicable law, protest and notice each Borrower waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring defense of any new other Borrower or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Borrower, stay other than the indefeasible payment in full in cash of all the Obligations. The Agent and the other Lenders may, at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any bankruptcy way the liability of any Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to applicable law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to the prior payment in full of the Obligations. None of the Borrowers will demand, sue for, or xxxerwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Lenders and shall forthwith be paid to the Agent to be credited against the payment of the Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Credit Documents.
Appears in 1 contract
Samples: Credit Agreement (Wickes Inc)
Additional Waivers. Grantor has executed (i) Each Guarantor waives any and delivered this Deed all notice of Trust with the intent of subjecting its interests in the Trust Premises to the lien acceptance of this Deed Guaranty, and any and all notice of Trust as security for the Obligations which include Obligations creation, renewal, modification, extension or accrual of parties other than Grantor (each an “Other Obligor”). Grantor hereby agreesthe Guaranteed Obligations, to or the fullest extent permitted reliance by lawthe Guaranteed Parties upon this Guaranty, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker the exercise of any right, power or privilege hereunder. The Guaranteed Obligations shall conclusively be deemed to have been created, contracted, incurred and permitted to exist in reliance upon this Guaranty. Each Guarantor waives promptness, diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all other notices to or upon the Notes or other Loan Documents Borrowers, such Guarantor or any other person Guarantor or other Person with respect to the Guaranteed Obligations.
(ii) Until the Guaranteed Obligations have been paid in full in cash, each Guarantor waives (A) any defenses such Guarantor may have to the Guaranty by reason of an election of remedies by the Guaranteed Parties, (B) any rights or defenses such Guarantor may have by reason of protection afforded to any Borrower or any other Loan Party pursuant to the anti-deficiency or other laws of the State of New York or other applicable law (to the extent waivable under such applicable law) limiting or discharging the Borrowers’ or such other Loan Party’s indebtedness, (C) any defenses arising by reason of any disability or other defense of the Borrowers or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Guaranteed Party) of the liability of any Borrower, (D) any defenses based on any claim that such Guarantor’s obligations exceed or are more burdensome than those of the Borrowers, (E) any right to compel any Guaranteed Party to proceed against or exhaust any other security held by Beneficiary at any time for the Guaranteed Obligations (or to proceed against such security in a particular order) or to pursue any other remedy in Beneficiarysuch Guaranteed Party’s power before exercising whatsoever, and (F) any benefit of and any right to participate in any security now or remedy under this Deed of Trusthereafter held by the Guaranteed Parties.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary Each Guarantor warrants and agrees that would reduce the burden each of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation waivers set forth herein is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver made with full knowledge of its significance and consequences and that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosureany such waivers are determined to be contrary to any applicable law or public policy, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment waivers shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation effective only to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, maximum extent permitted by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in fullapplicable law.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Flex Ltd.)
Additional Waivers. Grantor has executed Borrower hereby agrees that its obligations under this Agreement and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor Loan Documents are absolute and unconditional and shall not be affected or impaired by, and hereby agrees, to the fullest extent permitted by law, waives and agrees not to assert or take advantage of:
of any defense based on: (a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor the District or any person other Person, or persons; or
(vii) The the failure of Beneficiary Agent, Issuing Bank or any other Bank to file or enforce a claim against the estate (either in either administration, bankruptcy or in any other proceedingsproceeding) of any partner of any Other Obligor the District or any other person Person; (b) the voluntary or persons.
involuntary liquidation, sale or other disposition of all or substantially all of the assets of the District; (c) Demandthe voluntary of involuntary receivership, protest and notice insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, assignment, composition, or readjustment of, or any kindsimilar proceeding affecting the District or any other Person, including, without limitation, or any of the following notices:
District's or such other Person's properties or assets; (d) Notice the failure of the evidenceAgent, Issuing Bank or any other Bank to give notice of the existence, creation or incurring of any new or additional Obligations Indebtedness or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action nonaction on the part of any Other Obligor or Beneficiary other Person whomsoever in connection with any obligation Indebtedness; (e) any failure or evidence delay of Obligations held by Beneficiary as collateralthe Agent, Issuing Bank or any other Bank to commence an action against the District under any document, or to realize upon any security; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason failure 101 of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary the Agent, Issuing Bank or any other Bank to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor Borrower any facts Beneficiary it may now know or may hereafter know about any Other Obligor regarding the District or any successors in interest (if any) regardless of the Bonds, whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond to Borrower or not; (g) the risk invalidity or unenforceability of the Bonds, any documents delivered in connection therewith; (h) the compromise, settlement, release or termination of any or all of the obligations of the District under any documents delivered in connection with the Bonds or the issuance of the Eagle Ranch Letter of Credit in connection therewith; (i) any waiver or modification of any document or agreement with the District or otherwise executed in connection with the Bonds; and (j) to the fullest extent permitted by law, any other legal, equitable or surety defenses whatsoever to which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to GrantorBorrower might otherwise be entitled, it being understood the intention that the obligations of Borrower hereunder are absolute, unconditional and agreed that Grantor is fully responsible for being irrevocable. Borrower further expressly waives any and keeping informed all rights of the financial condition of Other Obligors subrogation to Agent, Issuing Bank or any successor in interest of other Bank against any Other Obligor and of all circumstances bearing on the risk of non payment of Person having any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable liability with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with BeneficiaryBonds (including, without limitation, the District), and Grantor has relied solely on said independent inquiries and investigations preparatory any rights to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur participate in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentscollateral for such Person's obligations.
Appears in 1 contract
Samples: Revolving Credit Agreement (Crescent Real Estate Equities Co)
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to a) To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Loan Party under the provisions of this Deed Agreement, any other Loan Document or otherwise or (ii) any rescission, waiver, amendment or modification of, or any release of Trustany Loan Party from, any of the terms or provisions of, this Agreement, any other Loan Document.
(b) Any The obligations of each Loan Party to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of all Commitments to any Loan Party under any Loan Document), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or setoff, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of any of the Obligations, or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party shall not be discharged or impaired or otherwise affected by the failure of any Credit Party to proceed against assert any Other Obligor’s propertyclaim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other party against whom Beneficiary might assert a claimagreement, before proceeding against Grantor under this Deed by any waiver or modification of Trust; or
(ii) The releaseany provision of any thereof, suspensionany default, discharge failure or impairment delay, willful or otherwise, in the performance of any of Beneficiary’s rights against any Other Obligor the Obligations, or by any other party against whom Beneficiary act or omission that may or might assert a claim, whether such release, suspension, discharge in any manner or impairment is explicit, tacit to any extent vary the risk of any Loan Party or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the burden indefeasible payment in full in cash of all the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension after termination of the time for the payment or performance of all Commitments to any Other Obligor’s obligations Loan Party under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsDocument).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kinddefense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, includingor the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations after the termination of all Commitments to any Loan Party under any Loan Document. The Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without limitationaffecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and performed in full after the termination of Commitments to any Borrower under any Loan Document. Pursuant to Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the following notices:case may be, or any security.
(d) Notice Any indebtedness of any Loan Party now or hereafter held by any other Loan Party or any Subsidiary thereof is hereby subordinated in right of payment to the prior indefeasible payment in full of the evidenceObligations, creation and no Loan Party will demand, sue for or incurring otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party or any such Subsidiary thereof on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any new Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Lenders, to be credited against the payment of the Obligations, whether matured or additional Obligations or obligation (provided that such Obligations or obligation is not secured by unmatured, in accordance with the terms of this Deed of Trust); orAgreement and the other Loan Documents.
(e) Notice Without limiting the generality of the foregoing, or of any action other waiver or non action on the part other provision set forth in this Agreement, each Loan Party waives all rights and defenses arising out of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to forecloseany Credit Party, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an even though that election of remedies by Beneficiary, even though the election of remedies, has destroyed such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy GrantorCredit Party’s rights of subrogation and reimbursement against Other Obligors such Loan Party by the operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for or otherwise. Each Loan Party hereby absolutely, knowingly, unconditionally, and expressly waives any deficiency upon a note secured by a Deed and all claim, defense or benefit arising directly or indirectly under any one or more of Trust upon real property in Sections 2787 to 2855 inclusive of the California Civil Code or any case in which the real property has been sold by the trustee under the power similar law of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against BeneficiaryCalifornia.
(hf) Any rights arising because Each Loan Party hereby agrees to keep each other Loan Party fully apprised at all times as to the status of Grantor’s payment or satisfaction its business, affairs, finances, and financial condition, and its ability to perform its Obligations, and in particular as to any adverse developments with respect thereto. Each Loan Party hereby agrees to undertake to keep itself apprised at all times as to the status of the Obligations secured hereby (i) against any Other Obligorbusiness, by way of subrogation to the rights of Beneficiary or otherwiseaffairs, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebyfinances, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor each other Loan Party, and of all circumstances bearing on the risk ability of non payment of each other Loan Party to perform its Obligations, and in particular as to any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that adverse developments with respect to any obligation secured thereof. Each Loan Party hereby Beneficiary mayagrees, in light of the foregoing mutual covenants to inform each other, and to keep themselves and each other informed as to such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice matters, that the Credit Parties shall have no duty to or consent of Grantor (i) release inform any party now or hereafter liable for the performance Loan Party of any such obligationinformation pertaining to the business, (ii) extend the time for the performance affairs, finances, or financial condition of any such obligationother Loan Party, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect pertaining to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor Borrower to perform its obligations hereunder Obligations, even if such information is adverse, and under even if such information might influence the decision of one or more of the Borrowers to continue to be jointly and severally liable for the Obligations of one or more of the other Borrowers. To the fullest extent permitted by Applicable Law, each Loan DocumentsParty hereby expressly waives any duty of the Credit Parties to inform any Loan Party of any such information.
Appears in 1 contract
Samples: Credit Agreement
Additional Waivers. Grantor has executed Debtor hereby waives notice of each and delivered every one of the following acts, events and/or conditions and agrees that, without necessity for any express reservation of rights against Debtor, neither the occurrence or existence of any such act, event or condition, nor Secured Party's commission of or omission to do any such act, event or condition, in any number of instances, shall in any way release, discharge, impair or diminish any of the Obligations, except as otherwise specifically agreed by Secured Party in writing: ------------ ----------- Initial Initial
(a) the amendment, modification, renewal, extension or refinancing of, or the granting by Secured Party of any indulgence of any nature with respect to, or the invalidity, voidability, unenforceability, compromise, settlement, release, waiver, discharge or impairment, in whole or in part, of the Credit Agreement, this Deed Agreement, any of Trust with the intent other Credit Documents, any of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include or any obligation of any Other Obligor with respect to any of the Obligations;
(b) the addition of any maker, guarantor, surety, endorser, indemnitor or other person primarily or secondarily liable for or obligated upon any of the Obligations;
(c) assumption of any of the Obligations by any other person, whether by assignment, sale, merger, consolidation, sublease, conveyance or otherwise;
(d) delivery to Secured Party or acceptance by Secured Party of parties any promissory note or other than Grantor instrument or writing evidencing or otherwise relating to any of the Obligations;
(each an “e) the institution of any suit, the obtaining of any judgment or the exercise of any other right or remedy against Debtor or any Other Obligor”);
(f) the sale, exchange, pledge, release, disposition, surrender, loss, destruction, damage to or impairment of, any Collateral; and
(g) the creation, perfection continuation, amendment, modification, invalidity, voidability, unenforceability, compromise, settlement, subordination, release, waiver, discharge, impairment or loss of priority, in whole or in part, of, any security interest, lien, other encumbrance directly or indirectly securing any of the Obligations. Grantor Debtor also hereby agreeswaives, to the fullest extent permitted by the same may be waived under applicable law, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker notice of any acceptance by Secured Party of the Notes or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.Agreement;
(b) Any defense all claims, causes of action and rights of Debtor against Secured Party on account of actions taken or not taken by Secured Party in the exercise of Secured Party's rights or remedies under this Agreement or under law, provided that the same did not arise from Secured Party's negligence or willfull misconduct;
(c) all claims and causes of action of Debtor against Secured Party for punitive, exemplary, indirect, special, consequential or other non-compensatory damages;
(d) all rights of redemption of Debtor with respect to any of the Collateral;
(e) in the event Secured Party seeks to repossess any or all of the Collateral by judicial proceedings, any bonds or demands for possession which otherwise may arise by reason of:be required;
(f) all rights of Debtor to have marshaled the Collateral or any other security for any of the Obligations; ------------ ----------- Initial Initial
(g) diligence in the enforcement or collection of all of the Obligations;
(h) except as otherwise provided in the Credit Agreement, presentment, protest, notice of protest and notice of non-payment with respect to all of the Obligations; and
(i) Beneficiary’s failure any duty or obligation of Secured Party to proceed against disclose to Debtor any Other Obligor’s propertyinformation concerning any other customer or client, or prospective customer or client, of Secured Party. Debtor agrees that Secured Party may exercise any other party against whom Beneficiary might assert a claimor all of its rights and/or remedies under the Credit Agreement, before proceeding against Grantor under this Deed of Trust; or
(ii) The releaseAgreement, suspensionunder other Credit Documents and under law without resorting to, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimwithout regard to, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden and regardless of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension adequacy of, any security or other sources of the time for the payment or performance of any Other Obligor’s obligations under any Note, or liability with respect to any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, Obligations. Neither any Note or failure nor any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action delay on the part of Secured Party in exercising any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to forecloseright, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan DocumentsCredit Agreement, to pursue under this Agreement, under other Credit Documents or under law shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other remedy or to enforce further exercise thereof or the exercise of any other right. Notwithstanding any modification, discharge power or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentsremedy.
Appears in 1 contract
Samples: Pledge and Security Agreement (Computer Learning Centers Inc)
Additional Waivers. Grantor has executed Owner hereby waives and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises relinquishes all rights and remedies accorded by applicable law to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, sureties or guarantors and agrees not to assert or take advantage of:
of any such rights or remedies, including without limitation (a) Any any right to require Beneficiary Administrative Agent or the Banks to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents Portfolio Entity or any other person Person or to proceed against or exhaust any other security held by Beneficiary Administrative Agent or the Banks at any time or to pursue any other remedy in Beneficiary’s Administrative Agent's or the Banks' power before exercising any right or remedy under this Deed of Trust.
proceeding against Owner, (b) Any any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of any Other Obligor’s property, Portfolio Entity or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge Person or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary Administrative Agent or the Banks to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedingsproceeding) of any partner of any Other Obligor Portfolio Entity or any other person or persons.
Person, (c) Demanddemand, presentment, protest and notice of any kind, including, including without limitation, the following notices:
(d) Notice limitation notice of the evidenceexistence, creation or incurring of any new or additional Obligations indebtedness or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non non-action on the part of any Other Obligor Portfolio Entity, Administrative Agent, the Banks, any endorser or Beneficiary creditor of the foregoing or on the part of any other Person under this or any other instrument in connection with any obligation or evidence of Obligations indebtedness held by Beneficiary Administrative Agent or the Banks as collateral; or
collateral or in connection with any Obligations, (fd) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary Administrative Agent or the Banks, including without limitation an election to foreclose, either proceed by non-judicial foreclosure or by exercise of the power of sale, this Deed of Trustrather than judicial foreclosure, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s otherwise impairs the subrogation rightsrights of Owner, rights the right of Owner to proceed against any Other Obligor a Portfolio Entity or another Person for reimbursement, or both, (e) any defense based on any offset against any amounts which may be owed by any Person to Owner for any reason whatsoever, (f) any defense based on any act, failure to act, delay or omission whatsoever on the part of a Portfolio Entity of the failure by a Portfolio Entity to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents, (g) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal provided, that, upon payment in full of the Obligations, this Agreement shall no longer be of any force or effect, (h) any defense, setoff or counterclaim which may at any time be available to or asserted by a Portfolio Entity against Administrative Agent, the Banks or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of Person under the Obligations secured hereby which defenses are based on an election of remedies by BeneficiaryCredit Documents, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary Administrative Agent or the Banks to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor Owner any facts Beneficiary Administrative Agent or the Banks may now know or may hereafter know about any Other Obligor or any successors in interest (if any) Portfolio Entity, regardless of whether Beneficiary (i) has Administrative Agent or the Banks have reason to believe that any such facts materially increase the risk beyond the risk that which Grantor Owner intends to assume by executing this Deed of Trustassume, (ii) has or have reason to believe that these such facts are unknown to Grantor Owner, or (iii) has have a reasonable opportunity to communicate such facts to GrantorOwner, it being understood and agreed since Owner acknowledges that Grantor Owner is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor the Portfolio Entities and of all circumstances bearing on the risk of non non-payment of any Obligations obligations and liabilities hereby guaranteed, (j) the fact that any Portfolio Entity may at any time in the future dispose of all or part of its direct or indirect interest in any Other Obligor to Beneficiary that is secured hereby.
other Portfolio Entity, (k) Any right to object to any defense based on any change in the release time, manner or place of any portions payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent or departure from the terms of the Trust Premises from Credit Documents, (1) any defense arising because of Administrative Agent's or the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary mayBanks' election, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent any proceeding instituted under the Federal Bankruptcy Code, of Grantor (ithe application of Section 1111(b)(2) release any party now or hereafter liable for of the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security thereforFederal Bankruptcy Code, and (ivm) alter, substitute any defense based upon any borrowing or release any property securing such performance. Before executing this Deed grant of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any a security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy interest under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension Section 364 of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan DocumentsFederal Bankruptcy Code.
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Additional Waivers. Grantor has executed (i) Each Guarantor waives any and delivered this Deed all notice of Trust with the intent of subjecting its interests in the Trust Premises to the lien acceptance of this Deed Guaranty, and any and all notice of Trust as security for the Obligations which include Obligations creation, renewal, modification, extension or accrual of parties other than Grantor (each an “Other Obligor”). Grantor hereby agreesthe Guaranteed Obligations, to or the fullest extent permitted reliance by lawthe Guaranteed Parties upon this Guaranty, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker the exercise of any right, power or privilege hereunder. The Guaranteed Obligations shall conclusively be deemed to have been created, contracted, incurred and permitted to exist in reliance upon this Guaranty. Each Guarantor waives promptness, diligence, presentment, protest, demand for payment, notice of default, dishonor or nonpayment and all other notices to or upon the Notes or other Loan Documents Borrowers, the Guarantor or any other person Guarantor or other Person with respect to the Guaranteed Obligations.
(ii) Until the Guaranteed Obligations have been paid in full in cash, each Guarantor waives (A) any defenses the Guarantor may have to the Guaranty by reason of an election of remedies by the Guaranteed Parties, (B) any rights or defenses the Guarantor may have by reason of protection afforded to any Borrower or any other Loan Party pursuant to the anti-deficiency or other laws of the State of New York or other applicable law (to the extent waivable under such applicable law) limiting or discharging the Borrowers’ or such other Loan Party’s indebtedness, (C) any defenses arising by reason of any disability or other defense of the Borrowers or any other guarantor, or the cessation from any cause whatsoever (including any act or omission of any Guaranteed Party) of the liability of any Borrower, (D) any defenses based on any claim that the Guarantor’s obligations exceed or are more burdensome than those of the Borrowers, (E) any right to compel any Guaranteed Party to proceed against or exhaust any other security held by Beneficiary at any time for the Guaranteed Obligations (or to proceed against such security in a particular order) or to pursue any other remedy in Beneficiarysuch Guaranteed Party’s power before exercising whatsoever, and (F) any benefit of and any right to participate in any security now or remedy under this Deed of Trusthereafter held by the Guaranteed Parties.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary Each Guarantor warrants and agrees that would reduce the burden each of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation waivers set forth herein is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver made with full knowledge of its significance and consequences and that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosureany such waivers are determined to be contrary to any applicable law or public policy, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment waivers shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation effective only to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, maximum extent permitted by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in fullapplicable law.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Additional Waivers. Grantor has executed The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker the failure of any of the Notes or other Loan Documents Agent or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right Secured Party to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to enforce or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy against any other Loan Party under the Loan Documentsprovisions of this Agreement, to pursue any other remedy Loan Document or to enforce otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other rightLoan Document, or any other agreement, including with respect to any other Loan Party, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any other Secured Party. Notwithstanding To the fullest extent permitted by Applicable Law, the obligations of each Loan Party hereunder shall not be subject to any modificationreduction, discharge limitation, impairment or extension termination for any reason (other than the indefeasible payment in full in cash of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by any subsequent modification default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations). To the fullest extent permitted by Applicable Law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any reorganization case concerning way the liability of any Other Obligor shall not affect Loan Party hereunder except to the obligation extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each Loan Party waives any defense arising out of Grantor any such election even though such election operates, pursuant to perform its obligations hereunder and under the Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan DocumentsParty, as the case may be, or any security. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior payment in full of the Obligations. Notwithstanding the foregoing, prior to the occurrence of an Event of Default, any Loan Party may make payments to any other Loan Party on account of any such indebtedness. After the occurrence and during the continuance of an Event of Default, none of the Loan Parties will demand, xxx for, or otherwise attempt to collect any such indebtedness.
Appears in 1 contract
Samples: Credit Agreement (Stage Stores Inc)
Additional Waivers. Grantor has executed (a) The Obligations are joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of Borrower hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker the failure of any of the Notes or other Loan Documents Agent or any other person Secured Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Collateral Agent or any other Secured Party.
(b) Any defense that may arise To the fullest extent permitted by Applicable Law, the obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the payment in full in cash of the Obligations), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of any subsequent Agent or any other Secured Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the payment in full in cash of all the Obligations).
(c) To the fullest extent permitted by Applicable Law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any reorganization way the liability of any Borrower hereunder except to the extent that all the Obligations have been paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior payment in full in cash of Grantor all the Obligations. In addition, any indebtedness of any Borrower now or hereafter held by any other Borrower is hereby subordinated in right of payment to perform its obligations hereunder the prior payment in full of the Obligations. Until the Obligations are paid in full, none of the Borrowers will demand, sxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Secured Parties and under shall forthwith be paid to the other Collateral Agent to be credited against the payment of the Obligations, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (Genesco Inc)
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agreesIn addition, to the fullest extent permitted by law, Guarantor hereby waives and agrees not to assert or take advantage ofof any defense based upon:
(ai) Any right to require Beneficiary to proceed against any Other Obligorthe incapacity, as maker lack of authority, death or disability of any of the Notes or other Loan Documents Borrower Party or any other person or entity;
(ii) the failure of Agent on behalf of the Lenders to commence an action against any Borrower Party, to proceed against or exhaust any other security held by Beneficiary Agent for the benefit of the Lenders at any time or to pursue any other remedy in Beneficiary’s power before exercising whatsoever at any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; ortime;
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary Agent to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor Guarantor any facts Beneficiary Agent may now know or may hereafter know about regarding any Other Obligor or any successors in interest (if any) Borrower Party regardless of whether Beneficiary (i) Agent has reason to believe (A) that any such facts materially increase the risk beyond the risk that which Grantor Guarantor intends to assume by executing this Deed of Trust, or (iiB) has reason to believe that these such facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to GrantorGuarantor, each Guarantor acknowledging that it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition and affairs of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.each Borrower Party;
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alterlack of notice of default, substitute demand of performance or release notice of acceleration to any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary Borrower Party or desirable any other party with respect to the ability Loan, this Guaranty or any other Loan Document;
(v) the consideration for this Guaranty;
(vi) any acts or omissions of Other Obligors Lender which vary, increase or decrease the risk on Guarantor;
(vii) the application by Borrower of the proceeds of the Loan for purposes other than the purposes represented by Borrower to honor all Agent on behalf of Other Obligors’ covenants and agreements with Beneficiarythe Lenders or intended or understood by Agent on behalf of the Lenders, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed Lender or Guarantor;
(viii) an election of Trust. Grantor agrees that Beneficiary may enforce this Deed remedies by Agent for the benefit of Trust without the necessity of resorting to or exhausting Lenders, including any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary election to proceed against any Other Obligorcollateral by judicial or nonjudicial foreclosure, to foreclose any lien on any whether real property or personal property securing the Obligationsproperty, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur by deed in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporarylieu thereof, and whether assented or not every aspect of any foreclosure sale is commercially reasonable, and whether or not any such election of remedies destroys or otherwise impairs the subrogation rights of Guarantor or the rights of Guarantor to proceed against any Borrower Party by Beneficiaryway of subrogation, Grantor hereby agrees for reimbursement or contribution, or all such rights;
(ix) any statute or rule of law which provides that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor a surety must be neither larger in amount nor in any other aspects more burdensome than that of the principal obligor; and
(x) any other suretyship defense that may be available to perform its obligations hereunder and under the other Loan DocumentsGuarantor.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligationobligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of the Administrative Agent or any Lender to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release of any Loan Party from, any of the Notes terms or other Loan Documents provisions of, this Agreement or any other person Loan Document, (other than as expressly contemplated by such waiver, amendment or modification), (iii) the failure to proceed against perfect any security interest in, or exhaust the release of, any of the Collateral or other security held by Beneficiary at or on behalf of the Administrative Agent or any time Lender or to pursue (iv) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any other remedy in Beneficiary’s power before exercising Loan Party or its assets or any right resulting release or remedy discharge of any obligation of any other Loan Party under this Deed of Trustany Loan Documents.
(b) Any defense that may arise by The obligations of each Loan Party to pay the Obligations in full hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the payment in full in cash of all Obligations and termination of the Commitments), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured herebyand shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors invalidity, illegality or any successor in interest unenforceability of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of Administrative Agent or any subsequent Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof (other than to the extent such waiver or modification so expressly waives or modifies such obligations or remedies), any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the payment in full in cash of all Obligations (other than contingent indemnification obligations not then due and payable) and termination of the Commitments).
(c) To the fullest extent permitted by Applicable Law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the payment in full in cash of all the Obligations (other than contingent indemnification obligations not then due and payable) and termination of the Commitments. The Administrative Agent and the Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any reorganization way the liability of any Loan Party hereunder except to the extent that all the Obligations have been paid in full in cash (other than contingent indemnification obligations not then due and payable) and the Commitments terminated. Pursuant to Applicable Law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case concerning may be, or any Other Obligor shall not affect security.
(d) Each Loan Party (except for the obligation Borrower) is a direct or indirect subsidiary of Grantor the Borrower, and each Loan Party acknowledges that (x) together with the other Loan Parties, it makes up a related organization of various entities constituting a single economic and business enterprise such that the Loan Parties share a common identity of interests and any benefit received by any one Loan Party benefits the other Loan Parties, and
(e) it will derive substantial benefit from the making of the Loans by the Lenders. Each Loan Party hereby agrees to keep each other Loan Party fully apprised at all times as to the status of its business, affairs, finances, and financial condition, and its ability to perform its obligations hereunder Obligations under the Loan Documents and in particular as to any adverse developments with respect thereto. Each Loan Party hereby agrees to undertake to keep itself apprised at all times as to the status of the business, affairs, finances, and financial condition of each other Loan Party, and of the ability of each other Loan Party to perform its Obligations under the Loan Documents, and in particular as to any adverse developments with respect to any thereof. Each Loan Party hereby agrees, in light of the foregoing mutual covenants to inform each other, and to keep themselves and each other informed as to such matters, that the none of the Administrative Agent or any Lender shall have any duty to inform any Loan Party of any information pertaining to the business, affairs, finances, or financial condition of any other Loan Party, or pertaining to the ability of any other Loan Party to perform its Obligations under the Loan Documents, even if such information is adverse, and even if such information might influence the decision of one or more of the Loan Parties to continue to be jointly and severally liable for, or to provide Collateral for, Obligations of one or more of the other Loan DocumentsParties. To the fullest extent permitted by Applicable Law, each Loan Party hereby expressly waives any duty of the Administrative Agent or any Lender to inform any Loan Party of any such information.
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Additional Waivers. Grantor has executed Owner hereby waives and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises relinquishes all rights and remedies accorded by applicable law to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, sureties or guarantors and agrees not to assert or take advantage of:
of any such rights or remedies, including without limitation (a) Any any right to require Beneficiary Administrative Agent or the Banks to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents Portfolio Entity or any other person Person or to proceed against or exhaust any other security held by Beneficiary Administrative Agent or the Banks at any time or to pursue any other remedy in Beneficiary’s Administrative Agent's or the Banks' power before exercising any right or remedy under this Deed of Trust.
proceeding against Owner, (b) Any any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against of the incapacity, lack of power or authority, death, dissolution, merger, termination or disability of any Other Obligor’s property, Portfolio Entity or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge Person or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary Administrative Agent or the Banks to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedingsproceeding) of any partner of any Other Obligor Portfolio Entity or any other person or persons.
Person, (c) Demanddemand, presentment, protest and notice of any kind, including, including without limitation, the following notices:
(d) Notice limitation notice of the evidenceexistence, creation or incurring of any new or additional Obligations indebtedness or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non non-action on the part of any Other Obligor Portfolio Entity, Administrative Agent, the Banks, any endorser or Beneficiary creditor of the foregoing or on the part of any other Person 11 406 under this or any other instrument in connection with any obligation or evidence of Obligations indebtedness held by Beneficiary Administrative Agent or the Banks as collateral; or
collateral or in connection with any Obligations, (fd) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary Administrative Agent or the Banks, including without limitation an election to foreclose, either proceed by non-judicial foreclosure or by exercise of the power of sale, this Deed of Trustrather than judicial foreclosure, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s otherwise impairs the subrogation rightsrights of Owner, rights the right of Owner to proceed against any Other Obligor a Portfolio Entity or another Person for reimbursement, or both, (e) any defense based on any offset against any amounts which may be owed by any Person to Owner for any reason whatsoever, (f) any defense based on any act, failure to act, delay or omission whatsoever on the part of a Portfolio Entity of the failure by a Portfolio Entity to do any act or thing or to observe or perform any covenant, condition or agreement to be observed or performed by it under the Credit Documents, (g) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal provided, that, upon payment in full of the Obligations, this Agreement shall no longer be of any force or effect, (h) any defense, setoff or counterclaim which may at any time be available to or asserted by a Portfolio Entity against Administrative Agent, the Banks or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of Person under the Obligations secured hereby which defenses are based on an election of remedies by BeneficiaryCredit Documents, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary Administrative Agent or the Banks to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor Owner any facts Beneficiary Administrative Agent or the Banks may now know or may hereafter know about any Other Obligor or any successors in interest (if any) Portfolio Entity, regardless of whether Beneficiary (i) has Administrative Agent or the Banks have reason to believe that any such facts materially increase the risk beyond the risk that which Grantor Owner intends to assume by executing this Deed of Trustassume, (ii) has or have reason to believe that these such facts are unknown to Grantor Owner, or (iii) has have a reasonable opportunity to communicate such facts to GrantorOwner, it being understood and agreed since Owner acknowledges that Grantor Owner is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor the Portfolio Entities and of all circumstances bearing on the risk of non non-payment of any Obligations obligations and liabilities hereby guaranteed, (j) the fact that any Portfolio Entity may at any time in the future dispose of all or part of its direct or indirect interest in any Other Obligor to Beneficiary that is secured hereby.
other Portfolio Entity, (k) Any right to object to any defense based on any change in the release time, manner or place of any portions payment under, or in any other term of, the Credit Documents or any other amendment, renewal, extension, acceleration, compromise or waiver of or any consent or departure from the terms of the Trust Premises from Credit Documents, (l) any defense arising because of Administrative Agent's or the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary mayBanks' election, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent any proceeding instituted under the Federal Bankruptcy Code, of Grantor (ithe application of Section 1111(b)(2) release any party now or hereafter liable for of the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security thereforFederal Bankruptcy Code, and (ivm) alter, substitute any defense based upon any borrowing or release any property securing such performance. Before executing this Deed grant of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any a security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy interest under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension Section 364 of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan DocumentsFederal Bankruptcy Code.
Appears in 1 contract
Samples: Credit Agreement (Calpine Corp)
Additional Waivers. Grantor has executed (a) The Obligations are joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of Borrower hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any the failure of the Notes or other Loan Documents Agent or any other person Credit Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Borrower under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Agent or any other Credit Party.
(b) Any The obligations of each Borrower hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the payment in full in cash of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or set-off, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure to proceed against any Other Obligor’s property, of the Agent or any other party against whom Beneficiary might Credit Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed of Trust; or
(ii) The releaseAgreement, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor other Loan Document or any other party against whom Beneficiary might assert a claimagreement, whether such releaseby any waiver or modification of any provision of any thereof, suspensionby any default, discharge failure or impairment is explicitdelay, tacit willful or inadvertent; or
(iii) Beneficiary’s failure to pursue otherwise, in the performance of the 120[120] Obligations, or by any other remedies available act or omission that may or might in any manner or to Beneficiary any extent vary the risk of any Borrower or that would reduce the burden otherwise operate as a discharge of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
any Borrower as a matter of law or equity (iv) Any extension of the time for other than the payment or performance in full in cash of any Other Obligor’s obligations under any Note, or any of all the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsObligations).
(c) DemandTo the fullest extent permitted by Applicable Law, protest and notice each Borrower waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring defense of any new other Borrower or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Borrower, stay other than the payment in full in cash of all the Obligations. The Agent and the other Credit Parties may, at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any bankruptcy way the liability of any Borrower hereunder except to the extent that all the Obligations have been paid in full in cash. Pursuant to Applicable Law, each Borrower waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) Each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Borrower of any Obligations, all rights of such Borrower against any other Borrower arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior payment in full in cash of all the Obligations and the termination of all Commitments to any Borrower under any Loan Document. In addition, any indebtedness of any Borrower now or hereafter held by any Borrower is hereby subordinated in right of payment to the prior payment in full of the Obligations. Until the Obligations are paid in full, none of the Borrowers will demand, xxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Borrower on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Borrower, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Agent to be credited against the payment of the Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands Agreement and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents. To the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Revolving Loans made to another Borrower hereunder (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower[’]’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (3[1]2) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning 121[121] of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
Appears in 1 contract
Samples: Credit Agreement (GameStop Corp.)
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against The Collateral Agent shall not in any Other Obligorway or manner be liable or responsible for (i) the safekeeping of the Collateral, as maker (ii) any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any diminution in the value thereof or (iv) any act or default of any carrier, warehouseman, bailee, forwarding agency or other person whomsoever, except to the extent that such loss, damage, liability, cost or expense has resulted from the gross negligence or willful misconduct of the Notes Collateral Agent or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary its affiliates. If the Collateral Agent at any time has possession of any Collateral, whether before or after an Event of Default, the Collateral Agent shall be deemed to pursue have exercised reasonable care in the custody and preservation of the Collateral if the Collateral Agent takes such action for that purpose as Debtor shall request or as the Collateral Agent, in its reasonable discretion, shall deem appropriate under the circumstances, but failure to honor any other remedy request by Debtor shall not of itself be deemed to be a failure to exercise reasonable care. The Collateral Agent shall not be required to take any steps necessary to preserve any rights in Beneficiary’s power before exercising the Collateral against prior parties, nor to protect, preserve, or maintain any right or remedy under this Deed of Trustsecurity interest given to secure the Obligations.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure The Debtor agrees to proceed defend, protect, indemnify and hold the Collateral Agent and each of the Purchasers and their respective related parties, jointly and severally, harmless from and against any Other Obligorand all claims, damages, losses, liabilities, obligations, penalties, fees, costs and expenses (including, without limitation, reasonable legal fees, costs, expenses, and disbursements of such Person’s propertycounsel) to the extent that they arise out of or otherwise result from this Agreement (including, or any other party against whom Beneficiary might assert a claimwithout limitation, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment enforcement of this Deed Agreement), except claims, losses or liabilities resulting solely and directly from such Person’s gross negligence or willful misconduct, as determined by a final judgment of Trust, any Note or any a court of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personscompetent jurisdiction.
(c) DemandThe Debtor agrees to, protest and notice upon written demand, pay to the Collateral Agent the amount of any kindand all costs and expenses, including the reasonable fees, costs, expenses and disbursements of counsel for the Collateral Agent and of any experts and agents (including, without limitation, the following notices:
(d) Notice any collateral trustee which may act as agent of the evidenceCollateral Agent), creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on which the part of any Other Obligor or Beneficiary Collateral Agent may incur in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosurethe preparation, negotiation, execution, delivery, recordation, administration, amendment, waiver or (ii) exercises other modification or termination of this Agreement subject to, and to the power of sale under this Deed of Trustextent of, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) 5.2 of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of TrustSecurities Purchase Agreement, (ii) has reason to believe that these facts are unknown to Grantor the custody, preservation, use or (iii) has a reasonable opportunity to communicate such facts to Grantoroperation of, it being understood and agreed that Grantor is fully responsible for being and keeping informed or the sale of, collection from, or other realization upon, any Collateral, the exercise or enforcement of any of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions rights of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any Collateral Agent hereunder, or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute the failure by any Debtor to perform or release observe any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentsprovisions hereof.
Appears in 1 contract
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, not to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against The Collateral Agent shall not in any Other Obligorway or manner be liable or responsible for (i) the safekeeping of the Collateral, as maker (ii) any loss or damage thereto occurring or arising in any manner or fashion from any cause, (iii) any diminution in the value thereof or (iv) any act or default of any carrier, warehouseman, bailee, forwarding agency or other person whomsoever, except to the extent that such loss, damage, liability, cost or expense has resulted from the gross negligence or willful misconduct of the Notes Collateral Agent or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary its affiliates. If the Collateral Agent at any time has possession of any Collateral, whether before or after an Event of Default, the Collateral Agent shall be deemed to pursue have exercised reasonable care in the custody and preservation of the Collateral if the Collateral Agent takes such action for that purpose as Debtor shall request or as the Collateral Agent, in its reasonable discretion, shall deem appropriate under the circumstances, but failure to honor any other remedy request by Debtor shall not of itself be deemed to be a failure to exercise reasonable care. The Collateral Agent shall not be required to take any steps necessary to preserve any rights in Beneficiary’s power before exercising the Collateral against prior parties, nor to protect, preserve, or maintain any right or remedy under this Deed of Trustsecurity interest given to secure the Obligations.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure The Debtor agrees to proceed defend, protect, indemnify and hold the Collateral Agent and each of the Purchasers and their respective related parties, jointly and severally, harmless from and against any Other Obligor’s propertyand all claims, damages, losses, liabilities, obligations, penalties, fees, costs and expenses (including, without limitation, reasonable legal fees, costs, expenses, and disbursements of such Person's counsel) to the extent that they arise out of or any other party against whom Beneficiary might assert a claimotherwise result from this Agreement (including, before proceeding against Grantor under this Deed of Trust; or
(ii) The releasewithout limitation, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment enforcement of this Deed Agreement), except claims, losses or liabilities resulting solely and directly from such Person's gross negligence or willful misconduct, as determined by a final judgment of Trust, any Note or any a court of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personscompetent jurisdiction.
(c) DemandThe Debtor agrees to, protest and notice upon written demand, pay to the Collateral Agent the amount of any kindand all costs and expenses, including the reasonable fees, costs, expenses and disbursements of counsel for the Collateral Agent and of any experts and agents (including, without limitation, the following notices:
(d) Notice any collateral trustee which may act as agent of the evidenceCollateral Agent), creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on which the part of any Other Obligor or Beneficiary Collateral Agent may incur in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosurethe preparation, negotiation, execution, delivery, recordation, administration, amendment, waiver or (ii) exercises other modification or termination of this Agreement subject to, and to the power of sale under this Deed of Trustextent of, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) 5.2 of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of TrustSecurities Purchase Agreement, (ii) has reason to believe that these facts are unknown to Grantor the custody, preservation, use or (iii) has a reasonable opportunity to communicate such facts to Grantoroperation of, it being understood and agreed that Grantor is fully responsible for being and keeping informed or the sale of, collection from, or other realization upon, any Collateral, the exercise or enforcement of any of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions rights of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any Collateral Agent hereunder, or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute the failure by any Debtor to perform or release observe any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentsprovisions hereof.
Appears in 1 contract
Samples: Pledge and Security Agreement (La Rosa Holdings Corp.)
Additional Waivers. Grantor has executed and delivered Without implying that this Deed Guarantee is governed by the laws of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties any state other than Grantor (each an “Other Obligor”). Grantor hereby agreesthe State of New York, to and without limiting any of the fullest extent permitted by lawagreements and waivers set forth herein, not to assert or take advantage ofthe Guarantor further agrees as follows:
(a) Any Guarantor agrees that on the Borrower's default, the Administrative Agent may elect to foreclose either nonjudicially or judicially against any real or personal property security (including, without limitation, the Project) it holds for the obligations of the Borrower under the Loan Documents, or any part thereof, or accept an assignment of any such security in lieu of foreclosure, or compromise or adjust any part of such obligations, or make any other accommodation with the Borrower or Guarantor, or exercise any other remedy against the Borrower or any security. No such action by the Administrative Agent will release or limit the liability of Guarantor to the Administrative Agent or any Lender, who shall remain liable under this Guarantee after the action, even if the effect of that action is to deprive Guarantor of the right to require Beneficiary to proceed against any Other Obligor, as maker of any of collect reimbursement from the Notes or other Loan Documents Borrower or any other person for any sums paid to the Administrative Agent or to proceed any Lender, or Guarantor's rights of subrogation, contribution, or indemnity against the Borrower or exhaust any other person. Without limiting the foregoing, it is understood and agreed that on any foreclosure or assignment in lieu of foreclosure of any security held by Beneficiary at the Administrative Agent, such security will no longer exist, and that any time right that Guarantor might otherwise have, on full payment of the obligations of the Borrower under the Loan Documents by Guarantor, to participate in any such security or to pursue be subrogated to any other remedy rights of the Administrative Agent or any Lender with respect to any such security will be nonexistent; nor shall Guarantor by deemed to have any right, title, interest or claim under any circumstances in Beneficiary’s power before exercising or to any right real or remedy under this Deed personal property held by the Administrative Agent, any Lender or any third party following any foreclosure or assignment in lieu of Trustforeclosure of any such security.
(b) Any Guarantor understands and acknowledges that if the Administrative Agent forecloses judicially or nonjudicially against any real property security for the Borrower's obligations, such foreclosure could impair or destroy any right or ability that Guarantor may have to seek reimbursement, contribution, or indemnification for any amounts paid by Guarantor under this Guarantee. Guarantor further understands and acknowledges that in the absence of this waiver such potential impairment or destruction of Guarantor's rights, if any, may entitle Guarantor to assert a defense to this Guarantee based on Code of Civil Procedure ss.580d as interpreted in Union Bank x. Xxxxxxx, (1968) 265 CA 2d 40, 71 CR 64, on the grounds, among others, that a lender should be estopped from pursuing a guarantor because the lender's election to foreclose may arise by reason of:
impair or destroy the subrogation, reimbursement, contribution, or indemnification rights of the guarantor. By execution of this Guarantee, Guarantor intentionally, freely, irrevocably, and unconditionally: (i) Beneficiary’s failure to proceed waives and relinquishes that defense and agrees that Guarantor will be liable under this Guarantee even though the Administrative Agent had foreclosed judicially or nonjudicially against any Other Obligor’s property, real or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trustpersonal property collateral for the Borrower's obligations; or
(ii) The release, suspension, discharge agrees that Guarantor will not assert that defense in any action or impairment of any of Beneficiary’s rights against any Other Obligor proceeding in which the Administrative Agent or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertentLender seeks to enforce this Guarantee; or
and (iii) Beneficiary’s failure acknowledges and agrees that the rights and defenses waived by Guarantor in this Guarantee include any right or defense that Guarantor may have or be entitled to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby assert based on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance arising out of any Other Obligor’s obligations under any Noteone or more of Code of Civil Procedure ss.ss.580a, 580b, 580d, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust726, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsCivil Code ss.2848.
(c) DemandGuarantor intentionally, protest freely, irrevocably and notice unconditionally waives and relinquishes all rights which may be available to it under any provision of California law or under any kindCalifornia judicial decision, including, without limitation, Section 580a and 726(b) of the following notices:California Code of Civil Procedure, to limit the amount of any deficiency judgment or other judgment which may be obtained against Guarantor under this Guarantee to not more than the amount by which the unpaid obligations of the Borrower under the Loan Documents guaranteed hereby plus all other indebtedness due from the Borrower under the Loan Documents exceeds the fair market value or fair value of any real or personal property securing said obligations of the Borrower under the Loan Documents and any other indebtedness due from the Borrower under the Loan Documents, including, without limitation, all rights to an appraisement of, judicial or other hearing on, or other determination of the value of said property. Guarantor acknowledges and agrees that, as a result of the foregoing waiver, the Administrative Agent and the Lenders may be entitled to recover from Guarantor an amount which, when combined with the value of any real or personal property foreclosed upon by the Administrative Agent (or the proceeds of the sale of which have been received by the Administrative Agent or the Lenders) and any sums collected by the Administrative Agent and the Lenders from the Borrower or other persons, might exceed the amount of the obligations of the Borrower under the Loan Documents guaranteed hereby plus all other indebtedness due from the Borrower under the Loan Documents.
(d) Notice Guarantor waives all rights and defenses that Guarantor may have because the Borrower's debt is secured by real property; this means, among other things: (i) the Administrative Agent and the Lenders may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by the Borrower; and (ii) if the Administrative Agent or the Lenders foreclose on any real property collateral pledged by the Borrower: (A) the amount of the evidenceObligations may be reduced only by the price for which that collateral is sold at the foreclosure sale, creation or incurring even if the collateral is worth more than the sale price; and (B) the Administrative Agent and the Lenders may collect from Guarantor even if the Administrative Agent, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from the Borrower. This is an unconditional and irrevocable waiver of any new or additional rights and defenses Guarantor may have because the Guaranteed Obligations or obligation (provided that such Obligations or obligation is not are secured by this Deed real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of Trust); orthe California Code of Civil Procedure. Guarantor specifically waives any right to a fair value hearing, and any and all other rights it may have under Section 580a of the California Code of Civil Procedure.
(e) Notice Guarantor waives all rights and defenses arising out of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights Administrative Agent and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by BeneficiaryLenders, even though the that election of remedies, such as a nonjudicial foreclosure with respect to this Deed of Trustsecurity for the Guaranteed Obligations, will destroy Grantor’s has destroyed Guarantor's rights of subrogation and reimbursement against Other Obligors the principal by the operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary Procedure or otherwise.
(if) Guarantor waives a deficiency judgment in a judicial foreclosureall rights and defenses which might otherwise be available to Guarantor under any guarantor, suretyship or (ii) exercises the power of sale other defenses under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) law of the State of California, including, without limitation, California Civil Code Sections 2787 to 2855, inclusive, 2899 and 3433, and California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against BeneficiarySection 359.5.
(hg) Any rights arising because Guarantor agrees that if the maturity of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other ObligorGuaranteed Obligation is accelerated by bankruptcy, by way of subrogation to the rights of Beneficiary insolvency or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of such maturity shall also be deemed accelerated for the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien purpose of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and Guarantee without demand on or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of Guarantor, and Guarantor hereby waives any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute demand or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentsnotice.
Appears in 1 contract
Additional Waivers. Grantor has executed Without limiting the generality of any other terms of this Agreement, and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest extent permitted by law, not the Debtor hereby expressly waives presentment, demand, dishonor, protest, diligence in collection, notice of protest, notice of non-payment, notice of acceptance, notice of maturity, notice of default, notice of demand, notice of dishonor, and notice of any renewals, extensions or modifications of this Agreement, the Note or any Obligations or in connection with any Collateral, and any other notice or action otherwise required to assert be given under the law in connection with the delivery, acceptance, performance, default, enforcement or take advantage of:
collection of this Agreement, the Note or any Obligations, and expressly agrees that this Agreement, the Note or any Obligations, or any payment hereunder or thereunder, may be extended, modified or subordinated (a) Any right to require Beneficiary to proceed against any Other Obligorby forbearance or otherwise), or the terms hereof or thereof, as maker of the case may be, may be modified or amended with the Debtor, from time to time, without in any way affecting in any way the obligations or the liability of the Notes or other Loan Documents Debtor or any other person endorser or to proceed against guarantor of Debtor or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense otherwise. The Debtor hereby further consents and agrees that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, the Lender or any other party against whom Beneficiary might assert a claimmay release or surrender, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge exchange or impairment substitute any property or other collateral security of any kind whatsoever (or any portion thereof) now held or which may hereafter be held as security for this Agreement, the payment of Beneficiary’s rights against the Note and/or any Other Obligor Obligations, or may add any property as security, or may release any party liable hereunder or under any applicable loan documents or otherwise, all without releasing in any way the obligations or the liability of the Debtor or any endorser or guarantor of Debtor or otherwise. The Debtor hereby further expressly waives any right to require the Lender or any other party against whom Beneficiary might assert a claimto marshal any property or other collateral security of any kind whatsoever (or any portion thereof) now held or which may hereafter be held as security for this Agreement, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden payment of the Note and/or any Obligations secured hereby on Grantor’s interests in or otherwise to compel the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy Lender or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right party to assert seek recourse against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation indebtedness owed to the rights of Beneficiary it from one source before seeking recourse or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in fullsatisfaction from another source.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents.
Appears in 1 contract
Samples: Engine Loan and Security Agreement (Willis Lease Finance Corp)
Additional Waivers. Grantor has executed (a) The Liabilities are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Loan Party hereunder shall not be affected by (i) the failure of the Agent or any Revolving Credit Lender to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Loan Party under the provisions of this Deed Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of Trustthe terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Liabilities, or (iii) the failure to perfect any security interest in, or the release of, any of the security held by or on behalf of the Collateral Agent or any Revolving Credit Lender.
(b) Any defense that may arise by The obligations of each Loan Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the indefeasible payment in full in cash of the Liabilities), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Liabilities, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise unenforceability of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary Liabilities or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure of the Agent or any subsequent Revolving Credit Lender to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, by any default, failure or delay, willful or otherwise, in the Obligations performance of the Liabilities, or by any other act or omission that may or might in any reorganization manner or to any extent vary the risk of any Loan Party or that would otherwise operate as a discharge of any Loan Party as a matter of law or equity (other than the indefeasible payment in full in cash of all the Liabilities).
(c) To the fullest extent permitted by applicable law, each Loan Party waives any defense based on or arising out of any defense of any other Loan Party or the unenforceability of the Liabilities or any part thereof from any cause, or the cessation from any cause of the liability of any other Loan Party, other than the indefeasible payment in full in cash of all the Liabilities. The Agent and the Revolving Credit Lenders may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Liabilities, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any way the liability of any Loan Party hereunder except to the extent that all the Liabilities have been indefeasibly paid in full in cash. Pursuant to applicable law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case concerning may be, or any Other Obligor security.
(d) Upon payment by any Loan Party of any Liabilities, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall not affect in all respects be subordinate and junior in right of payment to the obligation prior indefeasible payment in full in cash of Grantor all the Liabilities, as more particularly set forth in an Indemnity, Subrogation and Contribution Agreement to perform its obligations hereunder be entered into among the Loan Parties. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior payment in full of the Liabilities. None of the Loan Parties will demand, sxx for, or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (a) such subrogation, contribution, reimbursement, indemnity or similar right or (b) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Agent and under the other Revolving Credit Lenders and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Liabilities, whether matured or unmatured, in accordance with the terms of the Loan Documents.
Appears in 1 contract
Additional Waivers. Grantor has (a) Except as provided herein or in any other Loan Document or pursuant to any amendment or waiver executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises pursuant to the lien of this Deed of Trust as security for Section 10.1, the Obligations which include Obligations are the joint and several obligation of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by lawapplicable Law, the obligations of each Loan Party shall not be affected by (i) the failure of any Secured Party to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker any other Loan Document or otherwise, (ii) any release of any other Loan Party from any of the Notes terms or other Loan Documents provisions of, this Agreement or any other person Loan Document, or (iii) the failure to proceed against perfect any security interest in, or exhaust the release of, any of the Collateral or other security held by Beneficiary at any time or to pursue on behalf of the Administrative Agent or any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustSecured Party.
(b) Any Except as provided herein or in any other Loan Document or pursuant to any amendment or waiver executed pursuant to Section 10.1, the Obligations of each Loan Party shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible Payment in Full), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or setoff, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the Obligations of each Loan Party shall not be discharged or impaired or otherwise affected by the failure to proceed against any Other Obligor’s property, of the Administrative Agent or any other party against whom Beneficiary might Secured Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed Agreement, any other Loan Document or any other agreement, by any waiver or modification of Trust; or
(ii) The releaseany provision of any thereof, suspensionany default, discharge failure or impairment delay, willful or otherwise, in the performance of any of Beneficiary’s rights against any Other Obligor the Obligations, or by any other party against whom Beneficiary act or omission that may or might assert a claim, whether such release, suspension, discharge in any manner or impairment is explicit, tacit to any extent vary the risk of any Loan Party or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance otherwise operate as a discharge of any Other Obligor’s obligations under any Note, Loan Party as a matter of law or any of equity (other than the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (indefeasible Payment in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsFull).
(c) DemandTo the fullest extent permitted by applicable Law, protest and notice each Loan Party waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice defense of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on Party or the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Loan Party, stay other than the indefeasible Payment in Full. The Administrative Agent and the other Secured Parties may, at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any bankruptcy way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly Paid in Full. Each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable Law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) The Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible Payment in Full. Any Indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior indefeasible Payment in Full but may be paid in the ordinary course of business or as permitted pursuant to Section 7.7 hereof. If any amount shall be paid to any Loan Party erroneously or in violation of the provisions of this Agreement on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such Indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Secured Parties and shall forthwith be paid to the Administrative Agent to be credited against the payment of the applicable Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands Agreement and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsthe other Loan Documents. Without in any way limiting the generality of the foregoing, or of any subsequent modification other waiver or other provision set forth in this Agreement, each Loan Party hereby absolutely, knowingly, unconditionally, and expressly waives any and all claim, defense or benefit arising directly or indirectly under any one or more of Sections 2787 to 2855 inclusive of the Obligations in California Civil Code or any reorganization case concerning any Other Obligor shall not affect the obligation similar law of Grantor to perform its obligations hereunder and under the other Loan DocumentsCalifornia.
Appears in 1 contract
Samples: Senior Secured Super Priority Debtor in Possession Credit Agreement (Quiksilver Inc)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Borrower. Grantor hereby agrees, to To the fullest extent permitted by lawApplicable Law, the obligations of each Borrower shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Borrower under the provisions of this Agreement, as maker of any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the Notes terms or other Loan Documents provisions of, this Agreement or any other person Loan Document, or (iii) the failure to proceed against perfect any security interest in, or exhaust the release of, any of the Collateral or other security held by Beneficiary at any time or to pursue on behalf of the L/C Issuer or any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustCredit Party.
(b) Any defense that may arise by The obligations of each Borrower shall not be subject to any reduction, limitation, impairment or termination for any reason of:
(i) Beneficiary’s failure to proceed against other than the indefeasible payment in full in cash of the Obligations after the termination of the Commitments), including any Other Obligor’s propertyclaim of waiver, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claimthe Obligations, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure and shall not be subject to pursue any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising or setoff, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election unenforceability of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the obligations of each Borrower hereunder shall not be discharged or impaired or otherwise affected by the failure of the L/C Issuer or any subsequent other Credit Party to assert any claim or demand or to enforce any remedy under this Agreement, any other Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the performance of any of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any Borrower or that would otherwise operate as a discharge of any Borrower as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations after the termination of the Commitments).
(c) To the fullest extent permitted by applicable Law, each Borrower waives any defense based on or arising out of any defense of any other Borrower or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Borrower, other than the indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. The L/C Issuer and the other Credit Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Borrower, or exercise any other right or remedy available to them against any other Borrower, without affecting or impairing in any reorganization way the liability of any Borrower hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Commitments have been terminated. Each Borrower waives any defense arising out of any such election even though such election operates, pursuant to applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Borrower against any other Borrower, as the case concerning may be, or any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentssecurity.
Appears in 1 contract
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises Each Loan Party hereby waives to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to the fullest full extent permitted by law, not Law any defense it may otherwise have to assert or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person or to proceed against or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s property, or any other party against whom Beneficiary might assert a claim, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or any other party against whom Beneficiary might assert a claim, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden payment and performance of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge any contention that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations liability hereunder and under the other Loan Documents.Documents is limited and not joint and several. Each Loan Party acknowledges and agrees that the foregoing waivers and those set forth below serve as a material inducement to the agreement of the Administrative Agent and the Banks to make the Loans, and that the Administrative Agent and the Banks are relying on each specific waiver and all such waivers in entering into this Agreement. Each Loan Party further agrees that:
(i) the Administrative Agent and the Banks may do any of the following with notice to such Loan Party and without adversely affecting the validity or enforceability of this Agreement or the Obligations (or any portion thereof): (i) release, surrender, exchange, compromise or settle the Obligations or any portion thereof, with respect to any other Loan Party; (ii) change, renew or waive the terms of the Obligations, or any part thereof with respect to any other Loan Parties; (iii) change, renew or waive the terms of any of the Loan Documents or any other agreements relating to the Obligations, or any portion thereof, with respect to any other Loan Party; (iv) grant any extension or indulgence with respect to the payment or performance of the Obligations, or any portion thereof, with respect to any other Loan Party; (v) enter into any agreement of forbearance with respect to the Obligations, or any portion thereof, with respect to any other Loan Party; and (vi) release, surrender, exchange, impair or compromise any security of any other Loan Party held by the Administrative Agent or any Bank for the Obligations or any portion thereof. Each Loan Party agrees that the Administrative Agent and the Banks may do any of the above as the Administrative Agent and the Banks deem necessary or advisable, in the Administrative Agent's and the Banks' sole discretion, without giving notice to any other Loan Party, and that such Loan Party will remain liable for full payment and performance of the Obligations; and
(ii) each Loan Party waives and agrees not to enforce any of the rights of the Administrative Agent or the Banks against any other Loan Party or any other obligor of the Obligations, or any portion thereof, unless and until all of the Obligations shall have been indefeasibly paid in full and the Borrowers' rights to borrow hereunder have terminated, including but not limited to any right of such Borrower to be subrogated in whole or in part to any right or claim of the Administrative Agent and the Banks with respect to the Obligations or any portion 219962390
Appears in 1 contract
Samples: Credit Agreement (Big Lots Inc)
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligations of Trust with the intent Kmart and each Subsidiary Credit Party. Kmart and each Subsidiary Credit Party hereby assumes, guarantees, and agrees to discharge all Obligations of subjecting its interests in the Trust Premises all other obligors. In that regard, any Subsidiary Credit Party for whose account a Letter of Credit is to be issued shall, prior to the lien date of issuance, execute and deliver to the Issuing Banks a joinder to, and assumption of obligations under, this Deed Agreement (in addition to any letter of Trust as security for credit application or other documents required by the Obligations which include Obligations of parties other than Grantor Issuing Banks).
(each an “Other Obligor”). Grantor hereby agrees, to b) To the fullest extent permitted by lawApplicable Law, the obligations of Kmart and each Subsidiary Credit Party hereunder shall not be affected by (i) the failure of any Issuing Bank to assert any claim or take advantage of:
(a) Any right to require Beneficiary to proceed against any Other Obligor, as maker of any of the Notes or other Loan Documents or any other person demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy under this Deed of Trust.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure to proceed against any Other Obligor’s propertyother obligor under the provisions of this Agreement, any other Credit Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Credit Document, or any other party against whom Beneficiary might assert a claimagreement, before proceeding against Grantor under this Deed of Trust; or
(ii) The release, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor or including with respect to any other party against whom Beneficiary might assert a claimobligor, whether such release, suspension, discharge or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s the failure to pursue perfect any other remedies available to Beneficiary that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Notesecurity interest in, or the release of, any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note security held by or any on behalf of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsIssuing Banks.
(c) DemandTo the fullest extent permitted by Applicable Law, protest the obligations of Kmart and notice each Subsidiary Credit Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any kind, including, without limitation, the following notices:
(d) Notice of the evidenceObligations, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is and shall not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right be subject to assert against Beneficiary any defense arising or set-off, counterclaim, recoupment or termination whatsoever by reason of any claim the invalidity, illegality or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligorsotherwise. Without in any way limiting the generality of the foregoing, the obligations of each obligor hereunder shall not be discharged or impaired or otherwise affected by any subsequent modification default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or omission that may or might in any manner or to any extent vary the risk of any obligor or that would otherwise operate as a discharge of any obligor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations).
(d) To the fullest extent permitted by Applicable Law, each obligor waives any defense based on or arising out of any defense of any other obligor or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other obligor, other than the indefeasible payment in full in cash of all the Obligations. The Issuing Banks may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other obligor, or exercise any other right or remedy available to them against any other obligor, without affecting or impairing in any reorganization way the liability of any obligor hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to Applicable Law, each obligor waives any defense arising out of any such election even though such election operates, pursuant to Applicable Law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such obligor against any other obligor, as the case concerning may be, or any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentssecurity.
Appears in 1 contract
Additional Waivers. Grantor has executed (a) The Obligations are the joint and delivered this Deed several obligations of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”)Loan Party. Grantor hereby agrees, to To the fullest extent permitted by applicable law, the obligations of each Loan Party hereunder shall not to assert or take advantage of:
be affected by (ai) Any right to require Beneficiary to proceed against any Other Obligor, as maker the failure of any of the Notes or other Loan Documents Agent or any other person Secured Party to assert any claim or demand or to proceed against enforce or exhaust any other security held by Beneficiary at any time or to pursue any other remedy in Beneficiary’s power before exercising exercise any right or remedy against any other Loan Party under the provisions of this Agreement, any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, this Agreement, any other Loan Document, or any other agreement, including with respect to any other Borrower of the Obligations under this Deed Agreement, or (iii) the failure to perfect any security interest in, or the release of, any of Trustthe security held by or on behalf of the Collateral Agent or any other Secured Party.
(b) Any The obligations of each Loan Party hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or set-off, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure to proceed against of any Other Obligor’s property, Agent or any other party against whom Beneficiary might Secured Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed of Trust; or
(ii) The releaseAgreement, suspension, discharge or impairment of any of Beneficiary’s rights against any Other Obligor other Loan Document or any other party against whom Beneficiary might assert a claimagreement, whether such releaseby any waiver or modification of any provision of any thereof, suspensionby any default, discharge failure or impairment is explicitdelay, tacit wilful or inadvertent; or
(iii) Beneficiary’s failure to pursue otherwise, in the performance of the Obligations, or by any other remedies available act or omission that may or might in any manner or to Beneficiary any extent vary the risk of any Loan Party or that would reduce the burden of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance otherwise operate as a discharge of any Other Obligor’s obligations under any Note, Loan Party as a matter of law or any equity (other than the indefeasible payment in full in cash of all the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsObligations).
(c) DemandTo the fullest extent permitted by applicable law, protest and notice each Loan Party waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice defense of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on Party or the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Loan Party, stay other than the indefeasible payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any bankruptcy way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash. Pursuant to applicable law, each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) Each Borrower is obligated to repay the Obligations as joint and several obligors under this Agreement. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior indefeasible payment in full of the Obligations and no Loan Party will demand, xxx for or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Administrative Agent to be credited against the payment of the Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands Agreement and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents. Subject to the foregoing, to the extent that any Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Revolving Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an “Accommodation Payment”), then the Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Borrowers in an amount, for each of such other Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Borrowers. As of any date of determination, the “Allocable Amount” of each Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Borrower hereunder without (a) rendering such Borrower “insolvent” within the meaning of Section 101 (31) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraudulent Conveyance Act (“UFCA”), (b) leaving such Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA.
Appears in 1 contract
Samples: Credit Agreement (Jo-Ann Stores Inc)
Additional Waivers. Grantor has executed and delivered this Deed of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to a) To the fullest extent permitted by lawLaw, the obligations of each Loan Party shall not be affected by (i) the failure of any Credit Party to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Loan Party under the provisions of this Agreement, as maker of any other Loan Document or otherwise, (ii) any rescission, waiver, amendment or modification of, or any release from any of the Notes terms or other Loan Documents provisions of, this Agreement or any other person Loan Document, or (iii) the failure to proceed against perfect any Lien on, or exhaust the release of, any of the Collateral or other security held by Beneficiary at any time or to pursue on behalf of the Agent or any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustCredit Party.
(b) Any The obligations of each Loan Party shall not be subject to any reduction, limitation, impairment or termination for any reason (other than the indefeasible payment in full in cash of the Obligations after the termination of the Commitments), including any claim of waiver, release, surrender, alteration or compromise of any of the Obligations, and shall not be subject to any defense that may arise or setoff, counterclaim, recoupment or termination whatsoever by reason of:
(i) Beneficiary’s of the invalidity, illegality or unenforceability of any of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Loan Party hereunder shall not be discharged or impaired or otherwise affected by the failure to proceed against any Other Obligor’s property, of the Agent or any other party against whom Beneficiary might Credit Party to assert a claim, before proceeding against Grantor any claim or demand or to enforce any remedy under this Deed Agreement, any other Loan Document or any other agreement, by any waiver or modification of Trust; or
(ii) The releaseany provision of any thereof, suspensionany default, discharge failure or impairment delay, willful or otherwise, in the performance of any of Beneficiary’s rights against any Other Obligor the Obligations, or by any other party against whom Beneficiary act or omission that may or might assert a claim, whether such release, suspension, discharge in any manner or impairment is explicit, tacit to any extent vary the risk of any Loan Party or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce otherwise operate as a discharge of any Loan Party as a matter of Law or equity (other than the burden indefeasible payment in full in cash of all the Obligations after the termination of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or personsCommitments).
(c) DemandTo the fullest extent permitted by Law, protest and notice each Loan Party waives any defense based on or arising out of any kind, including, without limitation, the following notices:
(d) Notice defense of the evidence, creation or incurring of any new or additional Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on Party or the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension unenforceability of the Obligations or any amendmentpart thereof from any cause, modificationor the cessation from any cause of the liability of any other Loan Party, stay other than the indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. The Agent and the other Credit Parties may, at their election, foreclose on any security held by one or cure more of Beneficiary’s rights which may occur them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with any other Loan Party, or exercise any other right or remedy available to them against any other Loan Party, without affecting or impairing in any bankruptcy way the liability of any Loan Party hereunder except to the extent that all the Obligations have been indefeasibly paid in full in cash and the Commitments have been terminated; provided that the Canadian Borrower shall be liable only for the Canadian Liabilities and the Collateral granted by the Canadian Borrower shall secure only the Canadian Liabilities. Each Loan Party waives any defense arising out of any such election even though such election operates, pursuant to Law, to impair or reorganization to extinguish any right of reimbursement or subrogation or other right or remedy of such Loan Party against any other Loan Party, as the case may be, or proceeding concerning any Other Obligorsecurity.
(d) The Obligations are the joint and several obligation of each Loan Party; provided that the Canadian Loan Parties shall be liable only for the Canadian Liabilities. Upon payment by any Loan Party of any Obligations, all rights of such Loan Party against any other Loan Party arising as a result thereof by way of right of subrogation, contribution, reimbursement, indemnity or otherwise shall in all respects be subordinate and junior in right of payment to the prior indefeasible payment in full in cash of all the Obligations and the termination of the Commitments. In addition, any indebtedness of any Loan Party now or hereafter held by any other Loan Party is hereby subordinated in right of payment to the prior indefeasible payment in full of the Obligations and no Loan Party will demand, xxx for or otherwise attempt to collect any such indebtedness. If any amount shall erroneously be paid to any Loan Party on account of (i) such subrogation, contribution, reimbursement, indemnity or similar right or (ii) any such indebtedness of any Loan Party, such amount shall be held in trust for the benefit of the Credit Parties and shall forthwith be paid to the Agent to be credited against the payment of the Obligations, whether permanent matured or temporaryunmatured, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands Agreement and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, any subsequent modification of the Obligations in any reorganization case concerning any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documents. Subject to the foregoing, to the extent that any Domestic Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to another Borrower hereunder or other Obligations incurred directly and primarily by any other Borrower (an [”]”Accommodation Payment[”]”), then the Domestic Borrower making such Accommodation Payment shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Domestic Borrowers in an amount, for each of such other Domestic Borrowers, equal to a fraction of such Accommodation Payment, the numerator of which fraction is such other Domestic Borrower’s Allocable Amount and the denominator of which is the sum of the Allocable Amounts of all of the Domestic Borrowers. As of any date of determination, the [”]”Allocable Amount[”]” of each Domestic Borrower shall be equal to the maximum amount of liability for Accommodation Payments which could be asserted against such Domestic Borrower hereunder without (a) rendering such Domestic Borrower [”]”insolvent[”]” within the meaning of Section 101 ([31]32) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act ([”]”UFTA[”]”) or Section 2 of the Uniform Fraudulent Conveyance Act ([”]”UFCA[”]”), (b) leaving such Domestic Borrower with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA, or Section 5 of the UFCA, or (c) leaving such Domestic Borrower unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code or Section 4 of the UFTA, or Section 5 of the UFCA. Further, to the extent that any Domestic Borrower shall, under this Agreement as a joint and several obligor, repay any of the Obligations constituting Loans made to the Canadian Borrower hereunder or other Obligations incurred directly and primarily by any the Canadian Borrower, then, in addition to any rights of contribution it may have from other Domestic Borrowers, such Domestic Borrower shall be entitled to contribution and indemnification from, and be reimbursed by, the Canadian Borrower in the amount of such payment.
Appears in 1 contract
Samples: Credit Agreement (Rh)
Additional Waivers. Grantor has executed (a) The Secured Obligations are the joint and delivered this Deed several obligation of Trust with the intent of subjecting its interests in the Trust Premises to the lien of this Deed of Trust as security for the Obligations which include Obligations of parties other than Grantor (each an “Other Obligor”). Grantor hereby agrees, to To the fullest extent permitted by applicable law, the Secured Obligations of each Obligor shall not be affected by (i) the failure of the Administrative Agent or any Lender to assert any claim or take advantage of:
(a) Any demand or to enforce or exercise any right to require Beneficiary to proceed or remedy against any Other Obligorother Obligor under the provisions of any Loan Document or otherwise, as maker of (ii) any rescission, waiver, amendment or modification of, or any release from any of the Notes terms or other provisions of, any Loan Documents Document, or (iii) the failure to perfect any other person security interest in, or to proceed against the release of, any of the Collateral or exhaust any other security held by Beneficiary at or on behalf of the Administrative Agent or any time or to pursue any other remedy in Beneficiary’s power before exercising any right or remedy under this Deed of TrustLender.
(b) Any defense that may arise by reason of:
(i) Beneficiary’s failure The Secured Obligations of each Obligor shall not be subject to proceed against any Other Obligor’s propertyreduction, limitation, impairment or termination for any other party against whom Beneficiary might assert a claimreason, before proceeding against Grantor under this Deed including any claim of Trust; or
(ii) The waiver, release, suspensionsurrender, discharge alteration or impairment compromise of any of Beneficiary’s rights against the Secured Obligations, and shall not be subject to any Other Obligor defense or any other party against whom Beneficiary might assert a claimsetoff, whether such releasecounterclaim, suspension, discharge recoupment or impairment is explicit, tacit or inadvertent; or
(iii) Beneficiary’s failure to pursue any other remedies available to Beneficiary that would reduce the burden termination whatsoever by reason of the Obligations secured hereby on Grantor’s interests in the Trust Premises; or
(iv) Any extension invalidity, illegality or unenforceability of the time for the payment or performance of any Other Obligor’s obligations under any Note, or any of the other Loan Documents; or
(v) Any amendment of this Deed of Trust, any Note or any of the other Loan Documents, whether or not such amendment materially affects the risk that Grantor has assumed by executing this Deed of Trust; or
(vi) The incapacity or lack of authority of any Other Obligor or any person or persons; or
(vii) The failure of Beneficiary to file or enforce a claim against the estate (in either administration, bankruptcy or any other proceedings) of any partner of any Other Obligor or any other person or persons.
(c) Demand, protest and notice of any kind, including, without limitation, the following notices:
(d) Notice of the evidence, creation or incurring of any new or additional Secured Obligations or obligation (provided that such Obligations or obligation is not secured by this Deed of Trust); or
(e) Notice of any action or non action on the part of any Other Obligor or Beneficiary in connection with any obligation or evidence of Obligations held by Beneficiary as collateral; or
(f) Notice of payment or non payment by any Other Obligor of the Obligations secured by this Deed of Trust.
(g) Any right to assert against Beneficiary any defense arising by reason of any claim or defense based upon an election of remedies by Beneficiary to foreclose, either by judicial foreclosure or by exercise of the power of sale, this Deed of Trust, which in any manner impairs, reduces, releases, destroys or extinguishes Grantor’s subrogation rights, rights to proceed against any Other Obligor for reimbursement, or any other rights of Grantor to proceed against any other person or security. Grantor waives all rights and defenses to enforcement of all or any part of the Obligations secured hereby which defenses are based on an election of remedies by Beneficiary, even though the election of remedies, such as nonjudicial foreclosure with respect to this Deed of Trust, will destroy Grantor’s rights of subrogation and reimbursement against Other Obligors by operation of Section 580d of the California Code of Civil Procedure. Grantor makes this waiver with full knowledge that if Beneficiary (i) waives a deficiency judgment in a judicial foreclosure, or (ii) exercises the power of sale under this Deed of Trust, any action by Grantor against any Other Obligor to obtain reimbursement of any amount paid by Grantor hereunder will be barred by reason of (x) Beneficiary’s waiver of such deficiency in a judicial foreclosure or (y) Beneficiary’s exercise of such power of sale under the provisions of Section 580(d) of the California Code of Civil Procedure which provides that no judgment shall be rendered for any deficiency upon a note secured by a Deed of Trust upon real property in any case in which the real property has been sold by the trustee under the power of sale contained in the Deed of Trust. Grantor understands that absent the waiver set forth herein, Grantor would have a defense to its obligations hereunder with respect to a deficiency following a nonjudicial foreclosure or a judicial foreclosure in which the Beneficiary waived its right to a deficiency judgment against any Other Obligor and that by granting this waiver, Grantor is waiving this defense which Grantor would have against Beneficiary.
(h) Any rights arising because of Grantor’s payment or satisfaction of the Obligations secured hereby (i) against any Other Obligor, by way of subrogation to the rights of Beneficiary or otherwise, or (ii) against any other guarantor or any other party obligated to pay any of the Obligations secured hereby, by way of contribution or reimbursement or otherwise, but only until the Obligations secured hereby is paid in full.
(i) Any duty on the part of Beneficiary to disclose to Grantor any default under any Note or any other Loan Document.
(j) Any duty on the part of Beneficiary to disclose to Grantor any facts Beneficiary may now know or may hereafter know about any Other Obligor or any successors in interest (if any) regardless of whether Beneficiary (i) has reason to believe that any such facts materially increase the risk beyond the risk which Grantor intends to assume by executing this Deed of Trust, (ii) has reason to believe that these facts are unknown to Grantor or (iii) has a reasonable opportunity to communicate such facts to Grantor, it being understood and agreed that Grantor is fully responsible for being and keeping informed of the financial condition of Other Obligors or any successor in interest of any Other Obligor and of all circumstances bearing on the risk of non payment of any Obligations of any Other Obligor to Beneficiary that is secured hereby.
(k) Any right to object to the release of any portions of the Trust Premises from the lien of this Deed of Trust notwithstanding the fact that such releases may be made without Beneficiary having received any or adequate consideration therefor. Grantor further agrees that with respect to any obligation secured hereby Beneficiary may, in such manner and upon such terms and at such times as Beneficiary deems best and without demand or notice to or consent of Grantor (i) release any party now or hereafter liable for the performance of any such obligation, (ii) extend the time for the performance of any such obligation, (iii) accept additional security therefor, and (iv) alter, substitute or release any property securing such performance. Before executing this Deed of Trust, Grantor has made such independent legal and factual inquiries and investigations as Grantor deemed necessary or desirable with respect to the ability of Other Obligors to honor all of Other Obligors’ covenants and agreements with Beneficiary, and Grantor has relied solely on said independent inquiries and investigations preparatory to entering into this Deed of Trust. Grantor agrees that Beneficiary may enforce this Deed of Trust without the necessity of resorting to or exhausting any security or collateral securing the Obligations, without the necessity of proceeding against any guarantor, and without the necessity of proceeding against any Other Obligor. Grantor hereby waives the right to require Beneficiary to proceed against any Other Obligor, to foreclose any lien on any real or personal property securing the Obligations, to exercise any right or remedy under the Loan Documents, to pursue any other remedy or to enforce any other right. Notwithstanding any modification, discharge or extension of the Obligations or any amendment, modification, stay or cure of Beneficiary’s rights which may occur in any bankruptcy or reorganization case or proceeding concerning any Other Obligor, whether permanent or temporary, and whether assented to by Beneficiary, Grantor hereby agrees that it shall be obligated hereunder to pay and perform its obligations in accordance with the terms of this Deed of Trust. Grantor understands and acknowledges that by virtue of this Deed of Trust, it has specifically assumed any and all risks of a bankruptcy or reorganization case or proceeding with respect to Other Obligors. Without in any way limiting the generality of the foregoing, the Secured Obligations of each Obligor hereunder shall not be discharged or impaired or otherwise affected by the failure of the Administrative Agent and the Lenders to assert any subsequent claim or demand or to enforce any remedy under any Loan Document or any other agreement, by any waiver or modification of any provision of any thereof, any default, failure or delay, willful or otherwise, in the Obligations performance of any of the Secured Obligations, or by any other act or omission that may or might in any reorganization manner or to any extent vary the risk of any Obligor or that would otherwise operate as a discharge of any Obligor as a matter of law or equity.
(c) To the fullest extent permitted by applicable law, each Obligor waives any defense based on or arising out of any defense of any other Obligor or the unenforceability of the Secured Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any other Obligor. The Administrative Agent, at its election, foreclose on any security held by one or more of them by one or more judicial or non-judicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Secured Obligations, make any other accommodation with any other Obligor, or exercise any other right or remedy available to them against any other Obligor, without affecting or impairing in any way the liability of any Obligor hereunder. Each Obligor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Obligor against any other Obligor, as the case concerning may be, or any Other Obligor shall not affect the obligation of Grantor to perform its obligations hereunder and under the other Loan Documentssecurity.
Appears in 1 contract
Samples: Senior Secured Super Priority Debtor in Possession Loan Agreement (Amyris, Inc.)
